The Universal Periodic Review (UPR) of the United Nations (UN) Human Rights Council facilitates the discussion and analysis of reports on the human rights situation in UN member-states.1 The record of the UPR processes, however, would remain stuck in the files of the UN and diplomatic missions unless deliberately and systematically brought out to the people of the countries involved for further discussion and subsequent action.
It is in this light that the 2008 UPR of Japan’s human rights situation is being presented in this article. It focuses on the situation of detention centers and prisons in Japan, one of the issues discussed in the UPR process.
Later in 2012, the second UPR of Japan’s reports will be held. Will there be new answers to old issues?
The 2008 UN summary report on observations of the treaty monitoring bodies on detention centers and prisons in Japan raises questions:2
14. CAT [Committee Against Torture] noted with concern that a definition of torture, as provided by article 1 of the Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment], was not included in the [Japanese] Penal Code, and that in particular “mental torture” within the meaning of the Convention’s definition is not clearly defined under articles 195 and 196 of the Penal Code and also that penalties for related acts, such as intimidation, are inadequate.3
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16. CAT was deeply concerned about allegations of continuous prolonged use of solitary confinement, despite the new provisions of the 2005 Act on Penal Institutions and the Treatment of Sentenced Inmates limiting its use. The State should amend current legislation to ensure that solitary confinement remains an exceptional measure of limited duration. In particular, the State should systematically review all cases of prolonged solitary confinement, by means of a specialized psychological and psychiatric evaluation, with a view to releasing those whose detention can be considered in violation of the Convention.4
The report further states that:5
15. The general conditions of detention in [Japanese] penal institutions, including overcrowding, were of concern to CAT. The Committee recommended that Japan take effective measures to improve conditions of detention, ensure strict monitoring of restraining devices, the provision of medical assistance to all inmates at all times and that it should consider placing medical facilities and staff under the jurisdiction of the Ministry of Health.6
The national report of Japan for the 2008 UPR explains the steps being taken on the issues raised by treaty monitoring bodies such as ensuring that “a heating/ cooling system is installed in the detention facilities” and “medical treatment from a doctor at public expense if a detainee is sick or injured” is provided. There is no response to the suggestion to put the medical service under the “jurisdiction of the Ministry of Health.” There is a statement that the overcrowding of the penal institutions is being addressed.
The national report of Japan does not discuss the issues regarding non-inclusion of the definition of torture in the penal law, and solitary confinement. The UN summary report discusses the long-standing issue of substitute prison system called daiyo kangoku:7
17. In 2007, CAT was deeply concerned at the systematic use of the Daiyo Kangoku substitute prison system for the prolonged detention of arrested persons even after they appear before a court, and up to the point of indictment. This may lead to a de facto disrespect of the principles of the presumption of innocence, right to silence and right of defence.8 Similar concerns were raised by the HR [Human Rights] Committee in 1998.9
During the interactive dialogue of the UPR, Japan’s response further explained this issue:10
With regard to the police detention system, it was explained that the necessity of detention was strictly examined by the police, a prosecutor, and a judge in due order, and that a judge decides on its necessity and the placement of the detention for a maximum of 10 days. A prosecutor and a judge respectively review the necessity of the extension of the detention, and a judge order is also necessary for the extension, which cannot exceed 20 days in total. The Delegation stated that the substitute detention system was indispensable to carrying out prompt and effective investigations. At the police detention facilities, investigative officers were not allowed to control the treatment of detainees; detention operations were conducted by the detention division of the facility, which is not involved in investigations at all. The Delegation also explained that, regardless of the type of crime committed, detainees can have consultations with their lawyer at anytime and there is no official watch person during the meeting and no time limitation.
Japan’s 2010 submission on follow-up to the recommendations in the 2008 Concluding Observations of the Human Rights Committee on Japan’s Fifth Periodic Report11 provides additional explanation that justifies the continued existence of daiyo kangoku. Essentially, the argument for continued use of daiyo kangoku is that it is “operated for swift and appropriate investigation and also for the convenience of the detainee’s defence counsel and family members.”12
The UN summary report also mentions the issue of complaints mechanism:13
24. Additionally, CAT was concerned at: (a) the lack of an effective complaints system for persons in police custody; (b) the lack of authority of the Board of Visitors for Inspection of Penal Institutions to investigate cases or allegations of acts of torture or ill–treatment; (c) the lack of independence of the Review and Investigation Panel on Complaints by Inmates in Penal Institutions and its limited powers to investigate cases directly; (d) statutory limitations on the right of inmates to complain and the impossibility of defence counsel assisting clients to file a complaint; (e) reports of adverse consequences for inmates as a result of having filed a complaint and of lawsuits rejected on the grounds that the term for claiming compensation had expired. The State should also consider establishing an independent mechanism, with authority to promptly and impartially investigate all allegations of, and complaints about, acts of torture and ill- treatment from both individuals in pretrial detention in police facilities or in penal institutions. The State should take all appropriate measures to ensure that the right of inmates to complain can be fully exercised.14 In relation to victims of sexual violence, CAT also called for the prompt and impartial investigation of allegations of torture and ill-treatment with a view to prosecuting those responsible.15 Additionally, the State should take appropriate measures to ensure that all victims of acts of torture or ill-treatment can exercise fully their right to redress, including compensation and rehabilitation.16
Japan responded to this issue by stating during the interactive dialogue of the UPR that “a complaints mechanism has been developed in order to ensure the appropriate treatment of detainees.” In its national report, it cites as one of the amendments to the penal law (Act on Penal Detention Facilities and Treatment of Inmates and Detainees) that “(C)omplaint mechanisms consisting of a petition for review, report of cases and filing of complaints are provided.” Thus a complaints mechanism has been developed where a “petition of objection may be sent to the Prefectural Public Safety Commission, a third party institution which controls the prefectural police.”
The UPR process includes the consideration of reports from the “stakeholders” which mainly consist of non- governmental institutions that work on human rights issues. Among these stakeholders,several Japanese non-governmental organizations submitted their respective reports. Their reports contradict on several points the national report of Japan and its responses during the interactive dialogue. The OHCHR compiled these reports and submitted a summary to the HRC.17
On the issue of daiyo kangoku, the stakeholder summary report stresses several points:18
a. The detention of persons in police cells for up to twenty- three days without charge.
b. The lack of regulations regarding the length of interrogations, the restriction on access to lawyers of detained persons, the lack of recording of interrogation sessions19 and the concern that this system is routinely being used to obtain 'confessions' through torture or other cruel, inhuman or degrading treatment, such as beating, intimidation, sleep deprivation, questioning from early morning until late at night, and making the suspect stand or sit in a fixed position for long periods. The 2008 National Police Agency guidelines for conducting interrogations have been found inadequate.
c. The lack of an independent institution to investigate complaints while suspects are in police detention facilities.
The stakeholders recommend the abolition of the daiyo kangoku (substitute prison) system, or “bring it into line with international standards, and implement safeguards, such as explicit directives for prompt and unhindered access to legal counsel as well as electronic recording of all interrogations.”20
The Japan Federation of Bar Associations (JFBA), responding to the 2010 comments of Japan on this issue (in response to the Human Rights Committee Concluding Observations), persistently argues for its abolition on the ground that:21
no other system in the world where police detention can be continued for as many as 20 days. In addition, the excuse that it is impossible to construct detention facilities cannot be accepted today, 30 years after the problem of substitute prisons was first pointed out by the JFBA. The only way to avoid “the risk of prolonged interrogations and abusive interrogation methods with the aim of obtaining a confession” is to abolish substitute prisons, which the JFBA has consistently called for.
JFBA adds that it does not call for immediate abolition of daiyo kangoku. Instead, it asks to “begin ... abolishing the [system of] detention of suspects to whom it would cause more adverse effects, such as those who deny the alleged crimes and juvenile suspects.”
On the new Act on Penal Detention Facilities and Treatment of Inmates and Detainees enacted in 2006, and took effect in June 2007, several stakeholders recognize the “positive provisions, such as the expansion of prisoners’ contacts with the outside world, the establishment of independent committees to inspect prisons, and the improvement of the complaints mechanisms.”22
However, they express concern about “the possibility for the revalidation of the period of the solitary confinement with no limitation, the introduction of a new type of handcuffs and their use together with the solitary confinement, ... the absence of definitive provisions for the investigation of deaths in prisons,” and the provision of “medical assistance to prisoners” not being under the jurisdiction of the Ministry of Health.23 JFBA explains further in 2010 that “mental and physical effects of the solitary confinement rule for death row inmates is serious, and it is absolutely necessary to amend Article 36 of the Act on Penal Detention Facilities and Treatment of Inmates and Detainees, so as to substantively guarantee mutual contact outside of individual cells.”24
While some improvements have been made on the situation of detention centers and prisons in Japan, there remain a number of issues that have to be sufficiently addressed in order to fully protect the human rights of detained persons and convicted prisoners in the country. It is expected that the recommendations25 of several member-states during the 2008 UPR would be the focus of discussions in the 2012 UPR of the human rights situation in Japan.
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1. The Universal Periodic Review process involves the consideration of information submitted by the UN Member- State involved, the OHCHR (for UN human rights treaty bodies), and “other relevant stakeholders”. See Universal Periodic Review - Documentation, in www.ohchr.org/EN/HRBodies/UPR/Pages/Documentation.aspx.
2. Compilation Prepared by the Office of the High Commissioner for Human Rights, In Accordance with Paragraph 15(B) of the Annex to Human Rights Council Resolution 5/1 - Japan, A/HRC/WG.6/2/JPN/2, 8 April 2008, page 6.
3. CAT/C/JPN/CO/1, para. 10. Originally note 72 of the UN summary document.
4. CAT/C/JPN/CO/1, para. 18. Originally note 74 of the UN summary document.
5. Compilation, op. cit.
6. CAT/C/JPN/CO/1, para. 17. Originally note 73 of the UN summary document.
7. Compilation, op. cit., page 7.
8. CAT/C/JPN/CO/1, para. 15. Originally note 75 of the UN summary document.
9. CCPR/C/79/Add.102, para. 23. Originally note 76 of the document.
10. Report of the Working Group on the Universal Periodic Review - Japan, A/HRC/8/44, 30 May 2008, page 4.
12. Para 7, “Substitute detention system and article 14 of the Covenant,” CCPR/C/JPN/CO/5/Add.1, 13 April 2010.
13. Compilation, op. cit., page 8.
14. CAT/C/JPN/CO/1, para. 21. Originally note 90 of the UN summary document.
15. CAT/C/JPN/CO/1, para. 25. Originally note 91 of the UN summary document.
16. CAT/C/JPN/CO/1, para. 23. Originally note 92 of the UN summary document.
17. Summary Prepared By The Office of the High Commissioner for Human Rights, In Accordance With Paragraph 15(C) of the Annex To Human Rights Council Resolution 5/1, A/HRC/WG.6/2/JPN/3, 3 April 2008.
18. Ibid., page 4.
19. The National Police Agency of Japan published in March 2009 a report on its verification of videotaped investigations done during the September 2008 - February 2009 period. But the report is being criticized for justifying partial videotaping of investigation “without giving any consideration to the harmful influences of interrogations taking place behind closed doors.” See Opinion on "Verification on Experimental Audio/Video Recording of Interrogations at Police", available at www.nichibenren.or.jp/en/document/opinionpapers/20090717.html.
20. Summary, op.cit., page 4.
21. Japan Federation of Bar Associations, Opinion Paper regarding the Japanese Government's Comments on the Concluding Observations of the Human Rights Committee, January 22, 2010, page 6. Available at www.ccprcentre.org/doc/HRC/Japan/JFBA_Japan94.pdf.
22. Summary, op.cit., pages 4-5.
24. JFBA, op. cit., page 18.
25. Report of Working Group, op. cit., page 18. Detention in Japan