The Death Penalty in Japan:
The Law of Silence
Going against the International Trend
International fact-finding mission
Article 1 : All human beings are born free and equal
in dignity and rights. They are endowed with reason and conscience and should act towards one another
in a spirit of brotherhood. Article 2 : Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall
be made on the basis of the political, jurisdictional or international status of the country or territory
to which a person belongs, whether it be
independent, trust, non-self-governing or
under any other limitation of sovereignty.
n°505a
October 2008
Tokyo Detention Centre
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Contents
Introduction 4
I. The Japanese Context 6
Context and history of the application of the death penalty in Japan
Actors
Authorities
Officials at Ministry of Justice
Detention Centre Personnel
Political Parties
Civil society
Lawyers
victims’ families and detainees’ families
NGOs and the movements in favour of abolition
Religious representatives
The influence of media
II. Current debates 18
Secrecy
Separation of powers
Life imprisonment without parole and a toughening of penalties
Fallacious arguments
Justification by public opinion
The confusion between the rights of victims and the death penalty
The cultural argument
III. Legal Framework 25
Domestic law and norms
International law
United Nations
Japan ratified the United Nations Convention Against Torture in 1999
The Council of Europe
The European Union
The International criminal court (ICC)
IV. Violations of the right to a fair trial 30
Daiyo kangoku: an unacceptable status quo
Free legal assistance at all stages
The Problem of Legal Remedies
The First Level of Jurisdiction
The Right of Appeal
Retrial
Pardon
V. Conditions of detention and of execution 37
Living Conditions in the Detention Houses
Visits and Contacts
Visits and Meetings
Communication and Correspondence
Medical Care and Health
Medical and Mental Care
Exercise and Hygiene
Suicide Prevention
Recreation
Complaints
Execution
VI. Conclusion and recommendations 47
Conclusion
Recommendations
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Introduction
In the framework of its engagement in favour of
the universal abolition of the death penalty, FIDH
undertakes international fact-finding missions in
countries where this inhuman practice is still carried
out. These missions have four objectives: (1) to
highlight the iniquity of this punishment, one already
abolished in law in 91 countries, abolished for all but
exceptional crimes, such as crimes committed during
wartime, in 11 other countries, and a punishment that,
while still legally sanctioned in 35 more countries, has
led to no execution for 10 years (de facto abolitionist
countries); (2) to show that as a general rule prisoners
condemned to death or executed throughout the
world do not benefit from fair trials, in the sense
given to the term under the Universal Declaration of
Human Rights and the International Covenant on Civil
and Political Rights (ICCPR), making the sentence
even more unacceptable. These missions of enquiry
also have as objectives to (3) turn the spotlight on
and publicise the living conditions of death row
detainees, from the time of conviction to execution.
The situation of detainees often amounts in reality to
«cruel, inhuman and degrading treatment», prohibited
by international human rights law. Finally, (4) in
leading such missions of enquiry, FIDH formulates
recommendations to authorities in the countries
concerned as well as to relevant actors, in a spirit of
dialogue and in order to support, to the extent that it
is possible, their efforts in favour of the abolition of
the death penalty or, at the very least, in support of a
moratorium on executions.
This report is the result of an international fact-finding
mission to Tokyo from the 25 July to 3 August 2008.
A previous enquiry mission on the death penalty had
been conducted by FIDH in Tokyo in October 2002,
resulting in the publication of a report in May 2003
(see, in annex, the recommendations formulated
in this report). The current mission aimed at
assessing the extent to which the previous reports’
recommendations have been implemented and at
registering the evolution of the death penalty in Japan
since the previous enquiry. The mission was composed
of three members - Mr. Dan Van Raemdonck, Professor
of Linguistics at the University of Brussels and VicePresident
of FIDH; Florence Bellivier, Professor of Law
at University Paris X-Nanterre and Secretary-General of
FIDH, in charge of the question of the death penalty;
and Jiazhen Wu, member of the Executive Board of the
Taiwan Association For Human Rights, FIDH member
organization.
FIDH would like to sincerely thank the Centre for
Prisoners’ Rights (CPR) for its constant support in the
lead up to and during the mission, as well as Forum 90
Calling for Ratification of the Second Optional Protocol
to ICCPR, Amnesty International - Japan, and the
Japan Federation of Bar Associations (JFBA) for their
invaluable contributions.
As in 2002, the cooperation of Japanese authorities
afforded to the FIDH mission was not entirely
satisfactory. The Minister of Justice did not respond to
the mission’s meeting request. The mission was only
able to meet with senior officials within the Ministry
of Justice. These officials indicated to the mission
that Japan no longer performs executions only in
between Parliamentary sessions or during periods of
public and political holidays, a state of play strongly
criticised in the previous report, which castigated
Japanese authorities for doing all in their power to
stifle debate on the subject. With patent cynicism, the
officials indicated to the mission that in response to
the previous report, executions since 2002 take place
regularly throughout the year.
In addition, the Supreme Court refused to meet with
the mission, providing instead an assortment of data
that he requested be included in the mission report.
As the mission members were unable to discuss these
figures in any way with the Court, it was decided to
not comply with the request. According to a number of
anonymous sources in the judiciary, the Supreme Court
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was displeased with the previous FIDH report, which
the Court believed inaccurately represented past
interviews.
The FIDH representatives visited two detention
centres: a newly built centre in Tokyo and another in
Nagoya. Contrary to the brevity of visits permitted
in 2002, those permitted for the current mission
each lasted between two and two and a half hours.
On each occasion, the FIDH mission was received
courteously by the Prison Director and by two or three
of his staff. Following a half an hour PowerPoint
presentation, almost as an advertisement, the
mission members were able to visit empty cells (both
individual and collective), without ever being able
to enter into contact or communication with the
detainees, as well as detention centre infrastructure
(kitchens, workshops, exercise areas etc.). While those
condemned to death are prohibited from leaving their
cell throughout the day (excluding bathing, exercise
and visits), they are held in wings with a variety of
detainees.
Reticence in the face of publicity is characteristic
of Japanese authorities positions vis-a-vis the death
penalty, an issue that is made as deliberately opaque
as possible. Today, executions are systematically
announced in Japanese news after they have taken
place. While, in comparison to 2002, the question of
the death penalty makes headlines more often, this
development springs less from the public questioning
of the death penalty than an official effort to prepare
public opinion for the judicial reform at-hand
concerning the introduction of lay judges in serious
cases including death penalty cases. In any case, the
conditions of detention of death penalty detainees go
largely unnoticed by the public.
The FIDH mission met with approximately 50
individuals:1
members of the legal profession (JFBA,
Japanese Federation of Bar Associations, that
represents a total of 19,500 jurists countrywide),
judges, a Professor of Law at Aoyama Gakuin University
(Mr. Niikura Osamu), journalists, abolitionist groups
(Forum 90, Amnesty International - Japan), one
pro-death penalty Parliamentarian, Parliamentarians
and members of the Diet Members’ League for the
Abolition of the Death Penalty, and a delegation
from the French Embassy given the current French
presidency of the European Union. The mission
met also with the members of death row prisoners’
families, members of civil society, including prison
visitors (Soba-no-kai, an anti-death penalty grassroots
group), members of the victims’ movement in favour
of the abolition of the death penalty (Ocean) and a
religious pastor working within an ecumenical religious
association supporting abolition. Victims’ families
associations in favour of the death penalty refused to
meet with the mission.
The points of view of those met diverged, ranging from
support for the total abolition of the death penalty
to an intransigent support for the maintenance of the
application of the death penalty, passing through those
in favour of the possibility of implementing a new
replacement punishment, the subject of a recently
launched debate within society - life imprisonment
without possibility of parole. Putting Japanese society in
context is necessary. The toxic gas attacks committed in
the Tokyo Underground by the Aum Sect in 1995 remain
omnipresent for many. Moreover, while criminality and
the number of prisoners in Japan is proportionally lower
than in comparable countries,2
Japan also has had to
deal with offence similar to the American Columbine
massacre, which, while isolated, attract significant press
attention and influence public opinion. At the same
1. See Annex for list of persons met.
2. In France, for example, the number of yearly homicides is slightly lower than 1000, while in Japan, with a population double that of
France, witnessed 1190 murders in 2007. This was the lowest rate of homicide since World War Two, according to CPR. As of December 2007,
there were 79809 prisoners, being 1.33 per cent times the French equivalent. In December 2006, there were 81255 prisoners, compared to
50897 in 1997. This indicates the rapid increase in detainees over the last ten years, with only one decrease in 1997.
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time, examples of a particular social malaise are
increasing, with 30,000 suicides in 2007.
After discussing the historical context and the
respective position of public opinion and of the
authorities concerning the death penalty (1),
the report will concentrate on the Japanese and
international legal framework (2) and on the legal
procedure itself (3), before finally addressing the
conditions of prisoners sentenced to death (4).
I. The Japanese
context
Context and history of the application of
the death penalty in Japan
Historically, Japan has a long-held practice of the
death penalty, including different forms of execution
- strangulation, decapitation and the forced suicide
ritual «seppuku». However, over approximately 346
years during the Heian period, between 810 and 1156,
no execution took place. The absence of war during
this period, as well as the influence of Buddhism
and of its compassionate principles are the principal
reasons that explain why the death penalty was not
applied. Following the Meiji Restoration (1868) and
the introduction of a Western-style criminal system,
the death penalty was done by hanging. After the
Second World War, the occupying powers undertook
constitutional and legal reform. With the exception
of crimes committed during time of war or crimes
concerning the imperial family and adultery, the 1947
Criminal Code remained almost identical to that of
1907. Ever since this time, Japan has maintained
the death penalty, aside from a brief de facto hiatus
between 1989 and 1993.
Executions require authorisation from the Minister for
Justice; the refusal of the then Minister - personally
opposed to the death penalty - to sign such an
authorisation between November 1989 and March
1993 resulted in this de facto moratorium. This period
coincided with the existence in Japan of a strong
abolitionist movement. This movement, however,
went into decline following the toxic gas attacks
carried out on the Japanese Underground by the Aum
Sect in 1995. The shock, the number of fatalities
and the plight of those who continue to suffer as a
consequence of the attacks, as well as the related
trials, were a body blow to the abolitionist movement,
which as a whole oscillates between maintaining
the demand for absolute abolition, calling for a
moratorium or even for reaching a compromise with
the introduction of a law replacing the death penalty
with life imprisonment without parole.
Altogether, Japan’s detention centres hold 102
detainees condemned to death. Since 1993, 76 such
detainees have been hanged.3
And the rhythm of
executions is only increasing. The three previous
Ministers for Justice, each occupying his post for less
than one year, ordered the execution of, respectively,
zero detainees (Sugiura Seiken), 10 detainees (Nagase
Jinen who, while seeming little in favour of executions,
clearly felt obliged, stating «I had to...»4
), and 13
detainees (Hatoyama Kunio). The last-mentioned
Minister made it known that he desired judicial reform
discharging the Minister for Justice of his responsibilities
to assent to all executions and gave carte blanche
to executions. In addition, he publicly announced his
desire to move towards a more flexible timetable of
executions, if possible within the six months following
the conviction.5
Such sentiments have earned him a
fearsome reputation, provoked a swathe of critical
articles, most notably in the Asahi Shimbun, which has
nicknamed him «the Grim Reaper».
3. See the Table provided in Annex.
4. Older persons are also executed. Two of the three executed on 25 December 2006 were older than 70. One went to the gallows in a wheel chair.
5 Which reflects the delay prescribed by law, although the delay may be prolonged by appeals.
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Minister Hatoyama is fully aware of international
pressure but insists on Japan’s sovereign right to
decide its own standards of justice. Two days after the
United Nations resolution of 18 December 2007 calling
for a universal moratorium on the death penalty, the
Minister, aware of the ensuing debate, signed off on
the execution of three individuals. Adding to three
executions in February, four in April and another three
in June, Japan’s rate of execution under Minister
Hatoyama has risen to three to four executions every
two months. Moreover, according to information
gathered from Amnesty International, the Minister
has misled Parliamentarians of Japan’s lower house,
claiming that the 27 European Union ambassadors with
which he had met had expressed «understanding» of
Japan’s stance on this issue.
Mr Hatoyama’s successor, Mr Yasuoka Okiharu, former
judge and lawyer, already having occupied the post as
Minister of Justice from 2000 to 2001, let it be known,
the day following his nomination, that he did not
support the abolition of the death penalty, because
«we must respect the wishes of the population who
share the opinion that [the most heinous crimes]
must be sanctioned solely by the death penalty».
In addition, having only occupied the post of head
of Japan’s Justice Ministry for one month, in the
context of the moribund Fukuda premiership7
and an
uncertain future for Japanese governance, the Minister
instructed a further three executions on 11 September
2008, stating «I have done my duty as the Minister of
Justice». The NGO Forum 90 declared that «in only
one month in position, the Minister would certainly
not have had time to seriously examine the files of the
three condemned to death, which shows his negligence
of his responsibilities as Minister».
However, under pressure from the international
community and civil society, the debate is emerging on
the legitimacy of capital punishment, notwithstanding
the difficulty to raise the issue among public opinion.
Actors
According to «regular» Governmental surveys
(supposedly undertaken every year, but more
commonly every five years, following the commission
of particularly heinous crimes), Japanese public
The Japan Times, 03/08/20086
6. The Japan Times is mostly read by non-Japanese readers, and does not represent the editorial line of most Japanese newspapers as regards
the death penalty, which rather reflect victims families’ opinion.
7. As was the case at the moment of writing. Prime Minister Fukuda Yasuo resigned on 1 September, raising the spectre of much-anticipated
elections.
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opinion remains strongly favourable to the death
penalty. In 1999, the survey indicated that 72.9% of the
people surveyed were supporting capital punishment;
in 2004, this number had risen to 81.4%.8
Yet numerous
criticisms point to the systematically biased character
of the questions posed. For example, the choice is
between (1) the death penalty must be abolished, in
every case; (2) the death penalty is indispensable and
cannot be avoided in certain cases; (3) I don’t know, I
can’t decide”.9
According to Professor Dando,10
even if
the questionnaires improve in response to criticisms,
the survey will very likely continue with tendential
questions favouring the retentionist cause. Forum
90 supported this assessment in its 1998 Alternative
Report relative to the Periodic Report of Japan before
the United Nations Human Rights Committee. A closer
study of the survey, nonetheless, unmasks alternative
realities. For example, Japan’s student population
is opposed to capital punishment, according to
Fukushima Mizuho, of the PSD (assertion confirmed by
a Professor of Law met by the mission, Niikura Osamu).
In general, the level of information on public opinion
concerning the death penalty is rather limited. It
seems, for example, that the majority of Japanese
believe the majority of countries worldwide practice
the death penalty.
Contemporary points of view on the death penalty
and its abolition, at least those brought to the
knowledge of the mission members, are complex
and often reflect heavily intertwined subjects and
factors, notably:
- the role of media in the formation and the
perception of the public opinion
- the importance of cultural beliefs concerning
death and the related principle that one must take
responsibility for one’s own actions;
- the lasting impact on public opinion of the
deadly gas attack of the Aum Sect in 1995 and the
Matsumoto Sarin Gas Attack 1994. (One victim of the
Matsumoto gas attack died soon after the end of the
mission, making news countrywide);
- the impact on public opinion and on the judicial
system of reforms implementing the equivalent of the
jury, as well as the position afforded to the victims
before the Prosecutor throughout legal proceedings;
- the impact on public opinion of calls emanating
from victims’ association, which demand that their
rights are recognised and respected, and confusion
created between these rights, on the one hand, and
the application of the death penalty, on the other;
- the impact on national debates of pressure exerted
at the international level, notably the warning of
the Council of Europe that it would suspend Japan’s
observer status as a consequence of the country’s
maintenance of the death penalty - A warning that,
although made in June 2001, remains until this
day unperformed, weakening the impact of such
international pressure.
Partisans of the death penalty presented a recurring
«cultural» argument to the mission members, claiming
that the fact of «giving death when one has killed»,
ie that putting to death an individual is the only and
sincerest form of expiation, and is deeply rooted
in Japanese culture. Government officials and one
Parliamentarian also expounded this view, as well as
media covering the cases of those put to death. The
cultural argument can also be found in Japanese
Governmental reports delivered to the United Nations
Human Rights Committee, under that country’s
obligations under the International Covenant on
Civil and Political Rights. At the same time, as was
underlined by others met by the mission, including
NGOs and academics, Japan is also home to a tradition
of religious plurality, englobing the teachings of
compassion, of forgiveness and of respect for life,
through both Buddhism and, more recently, Christianity.
8. See below for a detailed study of the results.
9. See Nagai Jin (2007-2008), « The death penalty – The current status in Japan. Gratuitous appeals to ‘Japanese Culture’ », in Japonesia
Review n°4, p. 68-74.
10. Dando S. (2000) Towards the abolition of the Death Penalty, Yuhikaku, Tokyo, Japan.
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Authorities
Officials from the Ministry of Justice
The mission was received by high-ranking officials
from the Ministry of Justice. They made reference
to a perceived error in the 2003 report (the officials
were most unimpressed with the report’s reference to
the manner in which the death penalty is a practice
«unworthy of a democracy», which was the title
of the FIDH report), they proceeded to give to the
mission of theoretical lesson on the workings of a
democratic state, workings said to be exemplified in
every respect by the Japanese Government.
The officials recognize the unique responsibility
of the Ministry of Justice for the confirmation of
death. Before the condemnation, the cases are in
the hands of the judiciary while post-conviction,
it falls to the Ministry to carry out the decision of
Justice. The cases are purportedly meticulously reexamined
on several occasions and independently
of applications for retrial or for clemency, according
to the chronological order of the confirmation of
death.11
Upon being re-examined, which may also be
performed upon the Minister’s request, the Minister
must sign the execution order, and execution should
then be carried out within 5 days. Retrial, appearing
perhaps unnecessary to officials with an almost
infallible confidence in the legal system and its
judges, concerned principally the mental state of the
detainee. Mentally disabled detainees are generally
not executed, even if it may happen (see the
example of Tsutomu Miayzaki or Seiha Fujima, who
was executed in Dec. 2007); indeed, priority is even
given to the execution of those detainees who appear
physically and mentally fit. While the officials spoke
of daily health inspections, such assertions contradict
the entirety of the mission’s other interviews.
Officials responded to questions concerning
mandatory appeals and the mandatory suspension
of the capital process in the case of a request for
retrial or clemency. There exists no written rule on
this subject and although possible, executions are
usually not performed. In response to the question
of whether the Government could introduce new
legislation providing for mandatory appeals as well as
mandatory suspension following a request to retrial or
clemency, the mission received no response.
The officials note in their favour that since 2006,
all individuals charged with offences that carry
the death penalty as punishment may have access
to a court-allocated lawyer before being charged.
Concerning the introduction of a lay judge system,
the officials claimed to understand the mission’s
concerns relating to lay judges’ potential poor legal
comprehension and the related need to provide
adequate training, in cooperation with Japan Bar
Associations and the Supreme Court.
Detention centre personnel
The mission was able to visit detention centres in
Tokyo and Nagoya (see below, detention conditions).
The well-disciplined personnel offered no criticism
of the system in place. Theoretical and up to
date information was provided during visits to the
detention centres, visits that were nonetheless
restricted to unoccupied areas.
Detention centres are not overcrowded. The
construction of the new Tokyo centre allowed
authorities to solve the problem of overcrowding and
a similar problem has now been resolved in Nagoya.
The mission members wish to highlight the cooperation
provided by centre directors and their staff. However,
in strict conformity with the policy of secrecy
11. Facts do not, however, reflect this. One person executed on 11 September 2008, Yamamoto Mineteru, was only sentenced definitively in
April 2006. The Minister for Justice did not allow Mineteru’s lawyers much time to prepare requests for retrial or appeal.
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surrounding the death penalty, it was not possible to
see, nor even to establish the location of execution
chambers. The living conditions in prisons have slightly
improved (cells are a little broader in Tokyo than in
Nagoya, but they remain nonetheless narrow, taking
into account that the official calculation of cell size
takes into account the thickness of the walls).
In what amounts to further improvements in 2002,
each detention centre now includes a Board of
Inspectors, established and entered into force in
2006. These «prison watchdogs», with the authority
to visit detention centres, are mandatorily composed
of a lawyer and a doctor, and, optionally, a professor
of criminal law, officials from municipal Government,
or representative of local community. Since 2007, a
law passed concerning the status of detainees and of
their rights, notably concerning the question of visits,
seems to have brought transparency to the previously
unwritten rules which saw visits depend on the
goodwill of the Prison Director. As a consequence of
the 2007 reform, the powers of the Prison Director are
now better defined, limiting his discretionary powers.
That said, a number of issues relating to the daily life
of prisoners remain solely in his or her power.
The two previously mentioned improvements are
important to the detainees, yet there was a notable
lack of publicity surrounding their introduction. As a
consequence, awareness of the new rules and rights
is low and individuals and families of detainees have
benefited little in practice. Moreover, in response
to the question of whether the personnel felt well
trained and psychologically supported in dealing with
those condemned to death, the response was in the
negative; FIDH believes that psychological supervision
of centre watchmen would be relevant.
Political parties
The FIDH mission met with several Parliamentarians:
one in favour of the death penalty, another opposed,
and the General Secretary of Diet Members’ League
for Abolition of the Death Penalty
Mr Hirasawa Katsuei, Parliamentarian belonging to
one of the ruling parties and a former member of
Japanese security forces, resolutely supports the
death penalty. This strident position results from
its perceived popularity: Mr Hirasawa relies on the
results from official surveys, and makes reference to
the rights of victims and to his electors who, in his
eyes, elected him on the platform of upholding the
death sentence. When questioned on how he could
be sure of this assertion, given that the question of
the death penalty is rarely raised in the framework of
election campaigns, Mr Hirasawa did not respond.
Mr Hirasawa remarked that life imprisonment (said
to be of indeterminate duration, and the most severe
penalty after that of capital punishment) lasts on
average only 25 years. He consequently stated his
resolve that this punishment must be increased
in severity and a new punishment is required: life
imprisonment without possibility of parole. The
Parliamentarian concerned forms the core of the
Parliamentary group working on the implementation
of this new punishment. In addition, a new bill
drafted by the League includes neither abolition, nor
moratorium but life imprisonment without parole,
along with unanimous verdict in death penalty
cases. Certain persons see in such a proposal of legal
reform the opportunity to reduce Japan’s recourse to
state-sanctioned execution. Mr Hirasawa expressed
his support for eliminating the secrecy surrounding
capital punishment.
Ms Fukushima Mizuho is a member of the upper house
and President of the Social Democratic Party. Ms
Mizuho supports the abolition of the death penalty
but indicates that this task will be more difficult now
than it ever has been. Certain media-sensationalised
cases charge the Japanese public atmosphere with
emotion and irrationality and reduce the scope for
advances. As a consequence of her pro- abolitionist
stance, Ms Mizuho, is regularly insulted. Her hopes
lie in the change of the upper house majority since
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2007, which could pave the way for the introduction of
a vote seeking to establish a moratorium on executions.
Mr Hosaka Nobuto is the Secretary General of the Diet
Members’ League for the Abolition of the Death Penalty,
a group comprising 70 members. This association is,
unfortunately, deliberately secretive. Only eight to
10 members dare to publicize their membership, such
is the sensitivity of the death penalty issue in the
electorate. The League’s President is Kamei Shizuka,
elected 10 times by the Japanese people and so who
has no need to fear for his position. For 12 years, the
electoral system having changed, each district now
elects only one member as its own member for each
of the upper and lower house. Fearful of a public
backlash, many politicians do not dare to make public
their stance on sensitive issues. It must be noted that,
according to Professor Niikura, the death penalty is not
an election topic and if it does make headlines, it does
so only to discredit the abolitionists (Professor Niikura
cites here the infamous case of Yamagushi district
where, despite the opprobrium heaped upon him, the
abolitionist candidate won the election).
According to Mr Hosaka, the new lay judges system and
the introduction of victims’ families in close proximity
to the Prosecutor will result in increasing the number of
condemnations to death to 100 every year, and between
now and five years time, the number of executions itself
will rise to 100 per year as well. Hosaka speaks also in
favour of the introduction of legislation introducing a
moratorium on the death penalty: in his eyes, change
to the constituency of the upper house and potential
positive changes resulting from upcoming elections in
the lower house (at the latest, in September 200912
),
must be taken advantage of. In addition, he promotes
the idea of a moratorium on the entry into force of the
laws on a civil jury and concerning victims’ families. In
contradiction to the principle of separation of powers,
it seems that the Japanese Parliament has not made
public all necessary information concerning reforms
and that the conditions in which the preliminary phases
unfolded, conditions regulated by the Supreme Court,
sparked opposition from certain Parliamentarians
speaking in defence of the separation of powers (see
below, separation of powers).
According to the Parliamentarians questioned, there
are three possible positions surrounding the abolition
of the death penalty: total abolition, total abolition
replaced by lifelong imprisonment without parole,
or the introduction of a moratorium on executions
combined with a penalty to life imprisonment without
parole. However, although this last option is considered
by many to be the most feasible, given the existing
political structures and alliances, another of those
interrogated disagreed markedly on the chance of such
a law’s success.
Civil society
Lawyers
The FIDH mission met with members of the Moratorium
Implementation Committee of the Japan Federation
of Bar Associations (JFBA), the three Tokyo based bars.
and local bars. Among the lawyers interviewed were
a number particularly involved in cases afoot involving
capital punishment. These lawyers expressed their
concerns with the following issues: limited access to
their clients, limited guarantees to a fair trial and
the disequilibrium between the legal representation
available to the opposing parties. A number of lawyers
considered that the official Japanese Government
position goes against the international movement
towards abolition. These lawyers affirmed that the
death penalty and the totality of legal proceedings
are, in and of themselves, cruel considering detention
conditions, the prevalent shroud of secrecy and the
arbitrariness which governs the execution timetable.
12. As of consequence of the resignation, 1 September, of Prime Minister Fukuda Yasuo.
FIDH - The Death Penalty in Japan: The Law of Silence / 12FIDH - The Death Penalty in Japan: The Law of Silence / 12
However, according to the JFBA, there exists no
nationwide consensus on the question of the death
penalty among its 20,000 professional members. In
a survey organized in 1993 by JFBA, 37% of lawyers
favoured unconditional abolition and 64% were
supporting conditional abolition. The survey organized
by the Nagoya Bar reveals a majority in favour of
abolition under certain conditions. In 2002, the JFBA
adopted a resolution calling for a moratorium on those
executions resulting from unfair trials. Since FIDH’s
2002 mission, the JFBA has reworked and republished
proposed legislation for the implementation of a
moratorium. This proposal has been submitted
to certain Parliamentarians. An awareness-raising
campaign is supposed to start soon. Those with
whom the mission spoke have also indicated that
lawyers require improved access to information, most
particularly the information concerning international
human rights standards relevant to death penalty trials.
They explained to the mission the concerns that bars
have thus far brought to the attention of the Japanese
Government, in particular the Governmental secrecy
that prevents knowledge of the execution chamber’s
whereabouts. Not just limited to the execution
chambers, the deliberate pall of secrecy surrounding
the entire capital punishment issue is a motivating
factor in the bars’ works.
JFBA members did, nonetheless, recognize recent and
minimal legislative improvements over the past years
(in particular, the 2006 law concerning detainees’
rights established board of visitors and was revised and
renamed in 2007 in order to include provisions for death
row inmates and pretrial inmates), while recognising at
the same time the limited impact of such progress on
the condemned themselves.
On the condition of anonymity, several judges shared
their concerns with the mission. Contrary to the
opinion of Parliamentarian Hirasawa, which stated that
citizens have more confidence in the justice system
than in the political, resulting largely from numerous
corruption scandals that have shaken the country,
the judges met spoke of the lack of interest in the
judicial sphere of most citizens (except when citizens
have been directly involved in a case). The judges
denounced the inordinate power of the Prosecution
as well as the subservience of certain Prosecutors
and judges (including those belonging to the Supreme
Court), who are more or less named or promoted
by the executive branch. «Glass ceiling», «invisible
harassment», «rampant intimidation» were all evoked
to characterise the delivery of Japanese justice. If a
particular judge delivers no capital sentence, he or
she would have little chance of being promoted. The
issue is not of always having to sentence to death, but
of making sure it remains an option, which suggests
that the case may not be judged entirely on its merits
but on the basis of the number of capital sentences
pronounced in preceding weeks. Therefore, the refusal
of the Supreme Court to meet with the mission may be
interpreted as a refusal to displease Government and
members of the Ministry of Justice.
Victims’ families and detainees’ families
FIDH’s 2002 mission met with representatives of an
association for the defence of victims’ rights, the
National Association of Crime Victims and Surviving
Families (NACVS), formed in 2000. The NACVS is a
National Federation grouping several small victims’
associations working to lobby in favour of victim
compensation as well as in favour of the right of victims
to participate in trials of the accused. The National
Association refused to meet with the current follow-up
mission.13
They did not express any reason why they
refused the mission’s request. It was just after Asahi
had described Hatoyama as “Grim Reaper”, which
they disapproved.
13. During FIDH’s 2002 mission, at a long meeting with victims’ families, the latter expressed a strong need to continue to be considered as
victims by the judiciary. They complained that detainees on death row lived in overly agreeable conditions and criticised the plan for victim
indemnity. The mission noted the families’ desire for revenge, their demands to see the guilty punished. All families met expressed their willingness
to “personally push to button” of execution. The mission noted that while Japanese human rights NGOs were well aware of the ICCPR, the
same could not be said of families. Victims’ families had posed questions on international law and its relationship to domestic law.
FIDH - The Death Penalty in Japan: The Law of Silence / 13FIDH - The Death Penalty in Japan: The Law of Silence / 13
The mission was able to meet with Harada Masaharu,
president of Ocean, an association including victims’
and detainees’ families, working for the abolition
of the death penalty. Mr Harada is the brother of
Harada Akio, assassinated in 1983 at work over an
issue concerning life insurance. The killer, convicted
in 1993, sought contact with Harada Masaharu with
the goal of seeking forgiveness. Mr Harada continually
refused any meeting right up until the confirmation
of capital punishment, punishment that he himself
had requested. After the capital sentence was
announced, Mr Harada agreed to meet with his
brother’s killer (a total of four times), meetings
which affected a change in his opinion on capital
punishment: he is henceforth one of Japan’s most
fervent defenders of its abolition. On two occasions,
Mr Harada had asked for clemency for the killer, who
was nonetheless executed in 2001. Harada Masaharu
published a book in 2004, entitled «The Assassin
Who Killed My Brother and I», which retells his life
and his relationship with the killer. The publication
generated much publicity, being the first of its kind.
Mr Harada then militated for the creation of Ocean,
which seeks to reunite the families of victims and
of detainees, following the model of the American
Association of Murder Victims’ Families for Human
Rights. Compounding the fact that he believes all
humans, including criminals, have the right to life,
Harada’s motivation derives less from the human
rights of the convicted than those of the victims
to know the truth (he himself believing never to
having found the truth during the trial, nor as a
result of his meetings with the killer) and to receive
compensation. Harada believes capital punishment
to be an unjust punishment (certain killers choose to
commit suicide after they killed as many people as
possible). He wants those convicted to have the time
to repent, to express regret, and to feel remorse; in
short, a life of repentance as punishment.
Mr. Harada Masaharu,
President and
founding member of OCEAN
FIDH - The Death Penalty in Japan: The Law of Silence / 14FIDH - The Death Penalty in Japan: The Law of Silence / 14
Emerging from Harada’s observations on the function
of the judicial system, his opinion is that the system
disregards the mental state of detainees; that the
secrecy surrounding the trial and execution is nefarious
(which remains unknown when the executions will
be carried out); that, while pre- conviction visits are
allowed with some level of freedom, post- conviction
restrictions on visits grow in significance (he supports
the right of victims families to see the accused); that
victims are not sufficiently supported (a lack of moral
and psychological support and no compensation);
that, in short, victims’ rights receive short shrift when
death is adjudicated to be the only and most just
compensation for their loss.
The mission also met with six women, family members
of detainees convicted in the Aum Sect case following
the deadly toxic gas attacks in 1995. These women
described the conditions of detention of their loved
ones, the difficulties in seeing them, the censorship
of all communication that leads to administrative
dehumanisation, the impossibility of their loved ones
to even see the sky etc. (see below, conditions of
detention). The mission met also with lawyers of the
detainees and with their family members (see the list of
persons met, in annex).
Finally, the mission met with members of a prison
visitors Association, Soba-no-kai, who also shared their
experiences of detention conditions. These individuals
also insisted, as will be seen below, that the situation
is growing worse; that while there is stability, even a
decrease, in the number of crimes, Japan is witnessing
a general toughening (and prolongation) of punishments
and of the death penalty in particular (the number of
capital sentences having increased from seven to 23 per
year over the course of the last 10 years).
NGOs and pro-abolition movements
The FIDH mission met with representatives of diverse
NGOs: Amnesty International (AI), Forum 90, and the
Centre for Prisoners’ Rights. These associations are
particularly active on the death penalty issue and
certain among them have contributed to Alternative
Reports submitted to the United Nations Committee
on Human Rights. Forum 90 is, in addition, an
active organiser of public-awareness campaigns, as
is evidenced by the Asian Forum Against the Death
Penalty of 2001. The Centre for Prisoners’ Rights was
created in 1995 with the aim of making detention
conditions compatible with international norms, of
creating contact and relationships with overseas
prisoners rights’ associations, and of making its
counsellors available to prisoners. All NGOs insisted,
with the support of statistics, upon the deterioration
of the situation, with regard to the enlarging number
of capital convictions and executions at a time when
criminality is stabilising, even decreasing.
Forum 90, reiterating its observations made to the
previous FIDH mission, and with the support of witness
statements arising from actual cases, expressed its
conviction that Japanese laws and practices (concerning
appeal procedures, conditions of amnesty, and the
disregard of the convicted’s mental state) are in patent
violation of the International Covenant on Civil and
Political Rights, of the ECOSOC resolution 1986/50
(concerning the mandatory appeal procedure to a higher
jurisdiction) and of the ECOSOC resolution 1989/6414
(concerning obligatory appeal control of the legality
of decisions, and the possibility of a pardon or of a
reduced sentence in the case of capital punishment).
Amnesty International -- Japan called for:
- the application of moratorium on executions;
- the commutation of death sentences already
pronounced;
14. See, Forum 90, Alternate Report on Article 6 of the ICCPR With regard to the Forth periodic report of the Governement of Japan, Rapport
alternatif sur l’article 6 du PIDCP,concernant le quatrième rapport périodique du gouvernement du Japon, September 1998, which remains
contemporary in its descriptions.
FIDH - The Death Penalty in Japan: The Law of Silence / 15FIDH - The Death Penalty in Japan: The Law of Silence / 15
- the end to secrecy surrounding executions;
- the introduction of procedural reforms, especially
relating to pardons;
-the creation of enquiries into known cases of illtreatment
and a refusal to legal counsel.15
Over the course of interviews between FIDH and NGO
representatives, certain representatives mentioned
the contribution of the media to establishing an
environment propitious to revenge and underlined
that journalists have only limited access to detainees
and have no real knowledge of detention conditions.
A number of representatives also spoke of a hard task
ahead for any legislation seeking moratorium but
reaffirmed their commitment to continued lobbying
and public-awareness raising. Staff highlighted
further concerns with the death penalty and its
application in Japan:
- firstly, it is essential to end the secrecy surrounding
executions and to make all information public;
- secondly, NGO workers highlighted the dehumanising
detention conditions, particularly on death row.
Once the convicted party is locked away, isolated
from the outside world, it is all too easy for the
public to become accomplices in state-sanctioned
executions.
In addition to educating public opinion, a task which
seems essential to advance the political debate, the
NGOs insisted upon the necessity of international
pressure, even if such pressure from abroad could
appear counterproductive given the baseless and
cultural arguments waived by Government.
Religious representatives
Various religious groups have discussed within
themselves the possibility of creating an interreligious
Association, uniting Protestants, Catholics,
Buddhists and Shintoists united against the death
penalty (Religious Network to Stop Executions). The
mission met with a representative, the Reverend
Kitani Hidefumi, who explained that, within the
context of increasing secularisation, the Network
made public statements expressing their disapproval
following each execution.
The Reverend opposed the need for revenge and
promoted the principles, widespread throughout the
Asian culture, of forgiveness and of reconciliation.
Buddhists, for example, detest the crime but not
the criminal or the sinner. The criminal maintains
his right to life; Man cannot assume the position
of God and take a life. The Network has launched
public awareness raising campaigns, notably with the
assistance of a publication relating to the witness
statements of approximately 20 Americans whose
opinion on the death penalty have changed. The
goal of the Network is to reconnect and reconcile
believers for and against the death penalty. The
Network hopes to create a sort of non-Governmental
platform, with the help of civil society, health
workers, and families.
The influence of media
The media have significant influence on the formation
of public opinion in its perception of individual
legal cases as well as on general understandings
of notions such as criminality and social harmony.
Consequently, media impacts upon debates on the
general atmosphere that reigns surrounding the
death penalty. Several individuals met by the mission
expressed their concern with the ethics of the
media corps. Several of those interviewed pointed
to the emblematic case in Hikari City, Yamaguchi
prefecture. On 14 April 1999, a 23-year-old woman
and her 11-month-old daughter were killed by young
15. AI, Japan : The Death Penalty : Summary of Concerns. La peine de mort : résumé des inquiétudes, 1/10/97, ASA 22/001/1997.
FIDH - The Death Penalty in Japan: The Law of Silence / 16FIDH - The Death Penalty in Japan: The Law of Silence / 16
man aged 18 years and one month.16
In this case,
the sensationalism of the press was such that the
Broadcasting Press Organisation, a public and neutral
NGO with a reputation as an ethical watchdog,
intervened to denounce the one-sided, partial and
unjust media perspective. Also highlighted was the
necessity of balancing in Japanese law and culture
the rights of the freedom of press and the right of the
accused to have a fair trial.
With regard to the written press, there are four
chief Japanese-language newspapers: Asahi Shimbun,
Yomiuri, Mainichi and Nikkei. During the first half
of the 1990s, the media called for a national debate
on the death penalty. After the Aum Sect attacks in
1995, debates against the death penalty, including
the importance of the Council of Europe resolution of
2001 calling on abolition of the death penalty, abated
significantly.
Television media, in addition to written media,
sympathise first and foremost with victims’ families, a
stance which leads often to sensationalised reporting
and premature assessments on the suspect’s guilt.
Moreover, other factors contribute to the partiality
of information reported: the fear and shame of the
accused’ families and their reluctance to speak with
journalists; a tendency of the journalists to conduct
an unequal number of interviews with members of
security forces and those involved in the Prosecution.
Blanket media coverage, which takes place during the
trial and at the moment of the final sentence, is a
tangible influence on the way in which public opinion
sees individual cases and upon the atmosphere in
which any debate on the death penalty takes place.
The mission met with journalists from two rival
newspapers: Tanaka Fumio of the Yomiuri Shimbun
and with Yamaguchi Susumu of the Asahi Shimbun.
Mr Tanaka, economist by training,17
speaking on
behalf of his newspaper, strictly followed its editorial
line: all crimes must be severely punished; the
death penalty is valuable because of its preventative
results. The Yomiuri proclaims itself to be
independent from all forms of economic pressure and
claims that it is public opinion that guides its editorial
policy. To the extent that public opinion is favourable
to the death penalty, the journal follows suit, without
being overly zealous, and seeks neutrality. According
to the newspaper, there is nothing inherently wrong
with including emotion or sympathising with victims
who society has ignored for too long. During the
interview, the journalist evoked the principle of an
eye for an eye. It is not because, Tanaka stated,
at an international level the cause of a moratorium
grows stronger that Japan must change. In response
to the mission’s surprise at these arguments, the
journalist conceded somewhat and spoke in favour of
removing the secrecy surrounding the death penalty
and executions, particularly in the context where a
jury is introduced and where victims’ families have
increased access to the Prosecution (on this topic, he
referred the mission to his newspapers’ treatment of
these issues). This newspaper plans to organise an
information campaign on the subject in the lead up to
the entry into force of these new reforms.
Mr Yamaguchi expresses, in contrast, his personal
opinions. Law reporter since 1991 with Asahi, he
has access to the legal corner of the Tokyo district
building. The editorial policy of his newspaper
respects political neutrality, the freedom of
expression, supports human rights, democracy and
the independence of Japan, and contributes to
world peace in the pursuit of happiness. The press,
according to him, unfortunately agitates public
opinion on certain trials and does not contribute to
rational reflection. Most often, the press advocates
16. Criminal maturity in Japan is set at 20. However, the capital punishment is applicable from the age of 18.
17. He became his newspaper’s self-taught death penalty specialist.
FIDH - The Death Penalty in Japan: The Law of Silence / 17FIDH - The Death Penalty in Japan: The Law of Silence / 17
severe punishments. Victims’ rights, after having
been left to the wayside for years, are today
(especially since the 1990s) overrepresented by
comparison to those of the accused. Yamaguchi
regrets the undeniable intimacy between industry,
the police, investigators and Prosecutors.
Additionally, press interns are trained often within
police stations, places where they are best able to
gather information, particularly concerning criminal
cases. Consequently, there exists an unfortunate
market for crime related information. Media,
in evoking the public call for harsher sentences,
forms rather than reflects the opinion of the public.
Citizens accept the status quo in this atmosphere,
which ends with an increase in the number of capital
convictions even though the number of crimes stays
constant.
Mr Yamaguchi also regrets the paucity of proper
education for journalists charged with reporting
such questions. Not understanding legal specificities
presented by lawyers, journalists have a tendency to
criticise such lawyers instead and not seek out the
truth. In 2005, Yamagushi opened a school, of which
he is in charge, in order to better educate young
journalists
Journalists have few opportunities to carry out real
investigations or counter-investigations: Yamaguchi
cites, however, the case of a journalist being able to
prove the innocence of an accused, which influenced
the course of the judgment.
Yamaguchi himself does away with sensationalism:
in the case of the Aum Sect and of Hikari City, he
did not criticise lawyers of the accused and instead
identified flaws in the court’s judgment. He seeks
rationality. There are many journalists at Asahi
Shimbun. Consequently, there exist diverging points
of views that may expressed freely provided that
such opinions remained faithful to the newspaper’s
editorial policy which, it is worth noting, does not
officially support abolition.
The newspaper was recently attacked for having
criticised Minister Hatoyama as the Grim Reaper.
Flagellated with outrage from victims’ families, the
newspaper, without apologising for its criticism,
expressed to the families that it understood their
pain and that it would try to work with more respect
in that regard.
Concerning the reforms relating to lay judges and
the new role for victims’ families close to the
Prosecutor, his newspaper is organising a large
information campaign throughout autumn, with the
aim of educating and fuelling awareness of the public
opinion.
FIDH - The Death Penalty in Japan: The Law of Silence / 18FIDH - The Death Penalty in Japan: The Law of Silence / 18
II. Current debates
Secrecy
Transparency is a nonnegotiable of democracy. Yet,
in Japan, the practice of secrecy seems to have
evolved into custom, most notably concerning the
death penalty. This mission had the opportunity to
meet with multiple opinions of all sorts on the death
penalty. All of them, regardless of their support or
disapproval of capital punishment, regretted the
secrecy that follows the pronunciation of a capital
sentence, that is, the entirety of the phase under
executive control.
And yet it is not solely at this juncture in the capital
punishment process that secrecy is worthy of
reprobation. As a consequence of Japan’s adversarial
system, the powerful Prosecutor is armed with all
advantages of public administration but is unobliged to
disclose information in his or her possession that could
work in favour of the accused. The disparity of power
only increases the already grossly unequal relationship
between Prosecution and defence. This leads to
nefarious consequences (see the Okunishi Affair), such
as the conviction of innocent parties.
Current reforms will install lay judges as well as
a pre-trial meeting between prosecutors, defense
attorneys, defendants (optional) and judges which
may facilitate an exchange of relevant documents.
Secrecy may consequently be diminished, and with
very few exceptions, no new evidence will be admitted
at the hearing that has not previously been made
known in the pre-trial meeting. That said, there can
be no certainty that the Prosecution will forward all
evidence in the accused’s favour. Moreover, even if
this reform appears to work towards the abolition of
secrecy, it gives the highly undesirable impression
that the outcome will have already been reached,
even before the trial begins. The declared goal of
the pre-trial procedure meeting is to quicken the
process (being a three-day judgment, so as not to
inconvenience the citizen jurors for too long). Judges
and lawyers met by the mission reported their fear
of seeing expeditious justice, justice that is blind to
judicial guarantees. Consequently, death penalty
convictions could increase at an alarming speed,
an outcome made even more possible by the fact
that decisions of the lay judges will be made by the
majority, and not on a unanimous basis.
FIDH’s 2002 mission also condemned the secretive
procedures surrounding the death penalty, the
conditions of detention, and the process of execution
itself. Execution was announced to the condemned
individual only in the morning, and detainees’ families
learnt only of the execution after the fact, often by
press. However, according to officials from the Ministry
of Justice, efforts have always been made so that, to
the extent that it is possible, concerned families are
informed before the press. Witnesses relate that this
policy is not blessed by universal success. Former
Minister Hatoyama introduced press conferences to
announce the name of the executed individual as well
as a resume of his crimes, which was considered as an
improvement by many, but failed to deal with secrecy
at the other stages, which necessitate improvement.
In addition, the press announcement played a role
in making the death penalty part of everyday life,
increasing its familiarity in the Japanese public
and teaching citizens to live with it as a normality.
Rational debates thus continue to suffer.
Further information kept secret is the details of
the execution chambers themselves. Everything
concerning the phase of justice and administration
following conviction in a court of law which comes
under the executive powers is subject to secrecy.
While the principle of public knowledge of decisions
is recognised under Article 21 of the Japanese
Constitution, exceptions aiming to protect the right
to privacy exist. A long-standing interpretation dating
back 10 years on the exceptions available under Article
21 holds that exceptions apply to all information
FIDH - The Death Penalty in Japan: The Law of Silence / 19FIDH - The Death Penalty in Japan: The Law of Silence / 19
that would allow for the identification of parties
involved in the capital punishment case: freedom of
such information could disturb the smoothness of an
execution. The Ministry of Justice is the depository
of information, even though such information should
belong to the nation as a whole, and the Ministry does
not consider the fact that it is those most interested
by the execution, the condemned and their lawyers,
who should be the ones to determine whether or not
they wish the right to their private life be respected.
A right that is, moreover, arguably grossly abused in
public by media.
A lawyer, Emura Tomoyoshi, decided to launch
an action against the Government to require the
abandon of secrecy surrounding the whereabouts
of execution chambers. 30 lawyers participated in
this case. The case was judged at the local level
on 18 January 2008 and dismissed. An appeal to
the High Court, on 28 July 2008, reached the same
conclusions. An appeal to the Supreme Court has
been made.
The decision of the High Court was justified by in
several ways. Firstly, according to the Court, the
information guarded by secrecy is of such technicality
that the public would not understand. Secondly,
removing secrecy would produce injustice. Thirdly,
transparency could have deleterious consequences
upon the mental state of the convicted person (if
he or she knew of the location of the execution
chamber, so the argument goes, he or she could
imagine his execution and thus descend into mental
degeneration). Such explanations highlight the highly
paternalistic character of the Government in regard
to its citizens and the condemned.
It should also be noted that on each occasion that
the Government is concerned and wins, the delays
in judgment are particularly quick (only six months
between the first case and appeal). Moreover, the
explanations given are troubling and serve to work
in the favour of the Government to the detriment of
constitutionality. It is possible here to raise questions
as to the independence of the justice system given
the well-known modalities of judicial nomination and
promotion.
Secrecy as an inherent part of a State never sits well
with true democracy. FIDH calls for the immediate
removal of secrecy in both judicial proceedings and
the execution itself.
Separation of powers
Emerging from the mission’s interviews is a fear
of the non-separation of powers and their growing
intermingling. Insufficiently independent from the
executive, the judiciary exists in too close a contact
with the legislature.
As the 2002 report repeatedly affirmed, democracy
in Japan suffers from an uncomfortable separation of
powers. Its existence is most certainly theoretically
provided for; according to Article 76 of the
Constitution of Japan: «all judges decide freely and
according to their conscience and are required to
maintain strict observance of the Constitution and its
laws». However, while the competence of Japanese
judges and magistrates cannot be questioned, the
same cannot be said for their independence. The
Japanese judicial system is rigorously hierarchical
and controlled by the Supreme Court whose members
are appointed by the Government. The President
of the Supreme Court is named by the Emperor
himself, upon the Government’s suggestion (Article
6 of the Constitution). And while it may be said that
Supreme Court judges do undergo public vetting
in public elections following their nominations,
such an a posteriori control is but smokes and
mirrors. Tribunal and Appeals Court judges are also
nominated by the Government but again upon the
suggestion of the Supreme Court, whose suggestions
are always followed. It is, moreover, the Supreme
Court that defines a judge’s function and his or her
remuneration. It can therefore be said that the
FIDH - The Death Penalty in Japan: The Law of Silence / 20FIDH - The Death Penalty in Japan: The Law of Silence / 20
Supreme Court is the holder of real power over the
entire judicial system, working under Government
control from where it has drawn its own membership.
Such a structure of organisation gives credence to
suspicions of insufficient independence. The case,
mentioned above, concerning making knowledge
of the execution chambers whereabouts, fuels
speculation of an insufficiently independent justice
system.
Not only strictly hierarchical, also worrying is
the role of the Ministry of Justice in the office of
Prosecutor. Prosecutor General, chief Prosecutor,
first Prosecutor - all offices are appointed under the
Minister’s authority. These officers have the sole
responsibility to begin Prosecution, with no provision
under criminal law providing the right for individuals
or civil parties to instigate Prosecution.18
It is thus
Prosecutors alone and at their discretion, without the
obligation to bring suspects before a judge, who may
order a police investigation and bring suspects before
a court. The prestige and the authority from which
Prosecutors benefit explains no doubt the extremely
high level of convictions pronounced by Japanese
courts (99.8%). To be guilty in the Prosecutor’s eyes
therefore equals a guilty verdict. In the majority
of cases, when the Prosecutor calls for capital
punishment, such a punishment is applied, even at
the end of a process marred by numerous appeals
(see below, the Okunishi Affair).
On the other hand, in an equally concerning manner,
Japanese judges have great power in the decision and
application of penalties. Therefore, a murder may be
punished by anything from five years imprisonment
to the death penalty. One individual with which
the mission met, the retentionist Parliamentarian
K. Hirasawa invokes, to explain this fact, the
strong distrust of the Japanese people towards the
legislature, an institution criticised historically
for multiple human rights violations. Two of the
judges with whom the mission met and who chose
to speak on condition of anonymity agree with the
above characterisation of judges’ powers, while
also choosing to nuance it. On the one hand, it is
less that the people trust the judiciary but more
that they are uninterested in it, until the day that
they themselves are confronted with it. Silence
or passivity is not an indication of support. On the
other hand, the enormousness of a judge’s discretion
is uncomfortable for many in the position. The
legislature should, according to those interviewed,
live up to its functions by establishing clear and
proportionate punishment scales, and in a manner
in which the power of an individual judge may be
performed in a coherent and comprehensive fashion.
In any case, the status quo allows all parties to
shirk responsibility. The political realm leaves
interpretation and significant scope to the judge;
the judiciary calls for clearer policy and guidance
from the legislature; Ministry of Justice officials say
that it is the role of Parliamentarians, who in turn
invoke public disapproval of Parliament to call on the
judge to take responsibility. The buck never stops.
Neither the executive, nor the legislature, not the
judiciary are willing to act, demanding that the other
make the first move. The situation is thus paralytic.
All this leads to Minister Hatoyama criticising the
length of trials and consequently questioning appeal
processes and clemency appeals, judged by him to be
time-wasting. This personal breach in to the judicial
wing of Government, even though the procedures for
appeal and clemency are tightly controlled (with,
for example, need for additional evidence to be
provided in the case of an appeal request) indicates
the low regard in which the separation of powers is
held by this Minister. He would do better to take the
legislative initiative, by introducing new legislation,
which falls within his Ministerial jurisdiction, in order
18. Following a guilty verdict in a criminal trial, a civil case may be brought upon the request of victims from December 2008.
FIDH - The Death Penalty in Japan: The Law of Silence / 21FIDH - The Death Penalty in Japan: The Law of Silence / 21
to ensure and guarantee a mandatory appeal or that
the request for retrial has the effect of mandatorily
postponing any furtherance of the capital punishment
process (see below). Furthermore, the Supreme
Court is charged with fixing conditions arising from
the jury reform, denying Parliamentarians their
legislative prerogatives and unnecessarily obfuscating
the role of the judge.
In the end, it is ultimately the Prosecutor whose
powers are most reinforced, who finishes always
by obtaining the decision which he seeks and
the punishments that he requests. Numerous
interviewees, judges, lawyers, and journalists insisted
on the fact that the Government (the Minister and
Cabinet), the Prosecutor, judges and police form in
some senses a single entity, given the closeness of
relations that exist at all levels, from education to
career improvement (nomination and promotions).
The media themselves contribute to this confusion,
failing to always play the role of fourth estate.
Life imprisonment without parole and the
toughening of punishments
A new debate has emerged over the past years
concerning the implementation of a new punishment:
life imprisonment without parole (see above, Political
Actors). While some see in this debate the possibility
of reopening the debate on the death penalty and
replacing capital punishment with an immutable life
sentence, others see the call for a new punishment
as a sign of increased hardening of Japan’s legal
arsenal. There is of course no guarantee that the
death penalty would be abolished in exchange
for the reform. While waiting, alliances between
abolitionists and supporters of the new punishment
are shaping a new debate and hypothesising on its
potential.
It should be noted that the current Minister
for Justice, Yasuoka Okiharu, the day following
his nomination, spoke of his opposition to the
introduction of the proposed new punishment, a
punishment he judged too cruel. That being the
case, the emergence of this new debate shows the
repressive character of Japanese justice and how it
has hardened over the past years. Those interviewed
spoke not only of an increase in the number of
individuals sentenced to death and executed, but
also of an augmentation over the past years of the
severity of punishments in general. The conditions
of parole have hardened in practice, particularly
as a result of pressure from victims’ groups, but
this hardening has not been the consequence of a
legislative change. According to the law, it is still
possible to release a prisoner on parole after he has
served one third of his sentence. In reality, however,
only 50.2% of prisoners have benefited from early
release (in 2006), among which 63.7% have already
served more than 80% of their sentence (a mere 6.6%
had served less than 70% of their sentence19
). In this
context, life imprisonment without parole, which
leaves open no possibility of social reintegration,
constitutes a new sort of sentence:20
a sentence
that until now has been missing between the death
penalty in life imprisonment (of indeterminate
length) with the possibility, be it more and more
hypothetical and tardy, of parole. It should be noted
that the maximum fixed sentence of imprisonment
was raised from 20 to 30 years in 2004, through an
amendment to the criminal code.
Existing in parallel with a hardening of sentences,
it should be noted that there has been no
favourable response to a demand to clemency since
1975. Concerning requests for retrial from those
condemned to death, the last was accorded in the
summer of 1986. In that case, the request led to
the acquittal in 1989 of Mr Akahori. Retrial was of
19. Source : White Paper on Criminality 2007.
20. The Criminal Code allows for conditional release for those sentenced to life imprisonment after 10 years. In practice, ery few are so released
and the average length of sentence preceding release is over 30 years (31 years and 10 months in 2007).
FIDH - The Death Penalty in Japan: The Law of Silence / 22FIDH - The Death Penalty in Japan: The Law of Silence / 22
notable importance in 1975 with the Shiratori Affair.
In this case, the Supreme Court had decided that the
accused should be afforded the benefit of the doubt
in the retrial. Four significant such requests followed
(Saitagawa, Menda, Matsumaya and finally Shimada):
in all four cases, the convicted was acquitted. At the
end of these widely publicised cases, beginning in
the 1990s, access to retrial was closed, as indicated
in the cases of Nabari (Okunishi) and Hakamada.
Additionally, the Office of Public Prosecutor at the
Supreme Court (Supreme Public Prosecutors’ Office)
gave the instruction to Prosecutors of the Courts of
First Instance (District Public Prosecutors’ Office) and
to Appeal Courts (High Public Prosecutors’ Office) to
no longer make certain elements of proof available to
the defence.
In addition therefore to the partial diffusion
of information concerning executions and the
sensationalised climate created and supported by the
media there exists, according to Professor Niikura,
a climate of generalised surveillance and increased
social control of which the death penalty one
instrument, among others.
Fallacious arguments
Justification by public opinion
Supporters of the death penalty often justify their
position by the necessity to respect public opinion.
In short, Vox populi, Vox dei. And while this may be
all too understandable from of populist politician, it
is much less acceptable from those areas of politics
which have the capacity to promote the well-being
of society with which they are entrusted. Courage,
vision and risk-taking are integral parts of politics,
which must not fear public backlash if, for example,
such a change is required by international human
rights law. In France, for example, leading up to the
abolition of the death penalty, surveys indicated that
63% of French citizens were favourable to it.
On closer inspection, things are not as clear-cut as
they seem, contrary to sensationalist press and the
efforts of the Minister for Justice. The latest official
survey, or a least that portion of the survey that
made headlines, indicates that 81.4% of Japanese
are favourable to the death penalty. Yet while it
may be that 81.4% of individuals responded positively
to the survey second question («the death penalty
is indispensable and cannot be avoided in certain
cases»), responses provided elsewhere should temper
the results. It should be noted that the question
mentioned above was divided into «should not be
abolished in the future» (61.7% positive response)
and «could be abolished in the future if the situation
changes» (31.8% positive response). As such, the
survey-identified death penalty advocates represent
no more than 61.7% of the 81.4%, being the 50.2% of
those surveyed, a result which significantly modifies
the argument and its force. That being said, it should
be noted that the 2004 final figure has risen since
1994: the overall number of those in support of the
death penalty has risen from 39.3% in 1994 50.2%
in 2004, representing a 10% difference, and related
without doubt to the attacks of 1995.
Yet it is possible that unpopular reforms be taken in
Japan. For example, 80% of Japanese are against the
jury reform. Citizens questioned would prefer that
the decision-making remain with professional judges.
This law has already been voted upon. Courage is all.
The confusion between the victims’ rights and the
death penalty
Another popular argument is the so-called
«retributive» character of the death penalty. Namely,
the guilty party will pay the price of a crime and
victims will receive just compensation in the same
form as their suffering. Victims will at last be
respected.
It is undeniable that victims have been Japan’s
forgotten people in the criminal system over the past
FIDH - The Death Penalty in Japan: The Law of Silence / 23FIDH - The Death Penalty in Japan: The Law of Silence / 23
decades. That being the case, the repositioning of
victims within the criminal procedure is said to simply
re-establish equality between all parties. Yet such
sensationalism, riding on the back of an election and
fuelled by a baying press, poisons judicial procedures
and underlines the impartiality required for the
correct trial procedure. The presence of victims’
families close to the Prosecutor, to facilitate victims’
declarations and sentence proposals, is extremely
worrying. The court must be a place of rational
judgment, for the discovery of truth, and not for an
eruption of irrationality facilitated by uncontrollable
emotion.
Moreover, in what is already recognised by certain
victims’ families, and the NGO Ocean, the death
penalty does in no way compensate victims: it does
not bring back to life he or she who has died; it
does not provide increased understanding of what
happened to facilitate mourning. Certain families
choose to call for the recognition of psychological
shock and related support in any compensation made;
these families occasionally demand access to see the
accused and to speak with him in order to understand
his or her real motivations and so to better mourn.
They seek also to be included in consideration by the
judicial system. The death penalty achieves nothing
for them; it only serves to isolate that part of society
identified, for good or for ill, as a danger.
The culturalist argument
A culture-based argument is often presented as
the ultimate voice in favour of the death penalty:
«the death penalty is in our culture, you cannot
understand, but you must accept it». Besides the
fact that this cultural argument is never used for a
whole host of other laws, to claim that the death
penalty is a cultural specificity of Japan forgets a
number of factors. The argument that refers to the
need to expiate the crime through death, which
also allows the accused to ask forgiveness, makes
caricatural reference to the seppuku tradition
(a suicide ritual, also known as hara-kiri), often
identified as an integral part of the Japanese culture
of honour. Yet seppuku only ever concerned a small
element of samurai warriors, and applied only in a
limited historical period. As such, seppuku cannot be
considered as an immutable part of Japanese culture.
If we were to give the cultural argument credence,
the Ministry of Justice would not attempt, as it does,
to prevent the suicide of the accused. However,
all steps are taken in ensuring that the convicted
individual remains alive until execution (video
surveillance, detention in individual and anti-suicide
cells, etc.). This ensures the individual maintains a
stable mental state, signifying that the Ministry works
to make the convicted party understand the meaning
of his or her execution. Everything that could excite,
upset, encourage, or in any way affect the mental
stability of the convicted party is prohibited, which
explains moreover the numerous restrictions placed
on the condemned during the detention.
Several persons met suggested that the imperative of
revenge could be considered as having been imported
from the Western Christian culture. Buddhism, like
other religions, seeks to advance the concepts of
forgiveness and reconciliation, in what are the real
specificities of the Japanese culture.
It should be borne in mind that during the Heian
period (810-1156, and in 346 years), under the
influence of Buddhism, the death penalty was not
practiced.
FIDH - The Death Penalty in Japan: The Law of Silence / 24FIDH - The Death Penalty in Japan: The Law of Silence / 24
Case study: The Okunishi Masaru case, also known as the Nabari case
In 1961, in Nabari City, in Mie Prefecture, five people died after consuming poisoned drinks to
20 women at a gathering in Kuzuo District. Only 25 families are living in that district, the person
responsible for this crime belonging necessarily to one of them. Okunishi was arrested as a suspect
(among the victims were his wife and mistress) and, after having been acquitted in the first
instance, as a consequence of certain witness statements, he was condemned to death on appeal in
1972. After several failed attempts to seek a retrial, the seventh request was positively received by
the High Court of Nagoya, on April 5, 2005.
The evidences against Okunishi were: confessions obtained under constraint, which Okunishi later
denied ; the fact that he reportedly was alone long enough in order to be able to pour the poison in
the bottle ; dents’ marks on the poison bottle’s tap that were attributed to Okunishi; the discovery
at Okunishi’s home of a product which could have contained the poison.
Expensive enquiries allowed to reply to all accusations (lawyers and supporters from the whole
country contributed financially to such enquiries): notes by the person in charge of the enquiry
report a witness affirming that Okunishi did not stay alone; the dents’ marks were not Okunishi’s and
could have been fabricated ; the product found at Okunishi’s home was not the same as the one used
for the poisoning (it was not the same poison and it would have coloured the wine).
In 2005, on the occasion of the seventh request, Nagoya’s High Court accepted the retrial, as in
the Shiratori case: the accused must benefit from the doubt, all evidences and their interrelation
must be taken into account to help the accused, who is presumed innocent. Up to that moment, in
the Nabari case, the Prosecutor had been following the directions of the Prosecutor’s office to the
Supreme Court prevailing before the Shiratori ruling, and had always refused to provide evidence to
the defence that would be favourable to the accused. The rulings following the six previous requests
for retrial had as well systematically refused to reconsider older elements, preventing thereby to
take into account all the evidences, as well as their interrelation.
There was hope for a ruling in favour of the accused. However, the Prosecutor appealed against the
decision of retrial. An appeal is pending to the Supreme Court. Okunishi is 82 years old. He has spent
36 years on the death row.
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III. Legal context
Domestic law and norms
Although the Japanese Constitution does not make
reference to the death penalty, relevant articles are
used in support of the abolitionist and retentionist
causes: «all citizens must be respected as individuals.
Their right to life... to the extent that it does not
harm public well-being, remains the supreme concern
of the legislator and of other Government officials»
(Article 13); «no individual may be deprived of life
or of liberty... outside those conditions provided for
by law» (article 31); «the use of torture or of cruel
punishment by an official is absolutely prohibited»
(article 36). However, as was stated in FIDH 2002
report, the Supreme Court has never found capital
punishment contrary to any constitutional provision (be
it the prohibition on torture or on cruel punishment,
or in relation to the right to life and freedom).
Additionally, given that priority is to be given to the
social polity as a whole and not individual, the court
has judged the death penalty to contribute to the
preservation of social harmony. As such, it appears
that the Supreme Court considers the abolition of the
death penalty to be the domain of policy and requires
a legislative modification, and should not in any case
emanate from the judiciary.
Various crimes are punishable by death, of which 12
may be found in the criminal code and the other six
in specific laws. It should be noted that since 2002,
the list of crimes punishable by death has increased
by one, organised crime, punishable under the Law
for Punishment of Organised Crime, Article 3(1).
This crime is also punishable by life imprisonment
or imprisonment of a minimum of six years. This
fact confirms the widespread observation that over
the course of the past 30 years Japan has moved
in the direction counter to the international norm
which seeks to reduce the death penalty’s field of
application. It remains to specify nonetheless that
in practice capital punishment is applied only to
aggravated murder.
While in Japan age of maturity is fixed at 20 years,
the death penalty may be applied from 18 years. This
interpretation stems from Article 51 of the Law on
Minors which says a minor under 18 should be imposed
life sentence instead of death. On 22 April 2008, the
Appeals Court in Hiroshima handed down the sentence
to death of an individual who was 18 years and one
month old at the time of the crime (in the case of
Hikari City, in Yamaguchi prefecture). According to the
Supreme Court, 14 people younger than 20 years old at
the time of the crime have been condemned to death
since 1966.
On the question of mental disability, the Criminal Code
states that (1) «an act committed by an insane person
will not be punished. (2) An act of diminished capacity
shall lead to the punishment being reduced. (Article
39). It seems, however, that this rule is poorly applied
in practice.
Code of Criminal Procedure (Article 479 (2)) provides
also that when a prisoner condemned to death is
pregnant, the execution will be suspended by order
of the Ministry of Justice. Paragraph 3 of the same
article states that after the birth the execution
may only take place with the express consent of the
Minister.
Execution takes place, by hanging, in the confines of
the prison, in the six months following the definitive
condemnation to death (Article 475 (2) of the Law
on Criminal Procedure) and within five days of the
execution order signed by the Minister for Justice. The
method of execution appears to be uncontroversial.
Evidence demonstrates that the rule according to
which the execution must take place within the six
months following the definitive condemnation was
not uniformly applied before Hatoyama took his office
because this provision had been interpreted just
as instruction, and not been considered as legally
FIDH - The Death Penalty in Japan: The Law of Silence / 26FIDH - The Death Penalty in Japan: The Law of Silence / 26
binding. This extension of the delay is also due to the
use of various remedies available by the death row
prisoners. But recently, it seems that MOJ changed its
interpretation.
In reality, the condemned prisoner is told of his or
her execution by the Prison Director the morning
itself, following an order conveyed to the Director
by the Prosecutor, charged with the execution of
all sentences, who himself has received a signed
order execution by the Minister for Justice. The
execution must always take place within five days
following the Minister’s order, except on weekends
and public holidays.21
The brief five-day timeframe
is justified, according to Ministry of Justice officials,
by the need to not unduly disturb the mental state
of the condemned party and, consequently, the work
of prison staff. According to the same officials, any
further delay would be even worse. It is the Minister
of Justice who, on advice from the office of criminal
affairs, decides which detainee will be executed after
a study of his or her case. The date of conviction is
only one criterion among several. Questioned on this
very point, the Prison Director in Tokyo did not wish
to specify neither when nor where executions took
place.
The condemned party goes to the execution chamber
free of physical restraints. At his or her request, he
or she is permitted to see a religious advisor and to
say his or her last words. Officials from the Ministry of
Justice sought to highlight that the detainee always
undergoes medical examination before the execution:
he or she is therefore always executed in a perfect
mental and physical state.
The execution is officially announced by the Ministry
of Justice during a press conference. Since December
2007, the name of the deceased is announced,
representing a significant change in policy. To
the extent that it is possible, the family of the
deceased is informed by telegram or telephone of the
execution before the press conference.
International law
United Nations
In June 1979, Japan ratified the International
Covenant on Civil and Political Rights (ICCPR). Article
6 of the ICCPR recalls that the right to life is inherent
to every human person. It states in countries
where the death penalty has not been abolished, its
application should be reserved solely for the most
serious crimes. The General Comment on article 6 of
the ICCPR clearly states that states parties must move
towards abolition of the death penalty. Abolition
is discussed in such as way as to leave no doubt
that abolition is desirable. The article also refers
generally to abolition in terms which strongly suggest
(paras. 2 (2) and (6)) that abolition is desirable. The
Committee concludes that all measures of abolition
should be considered as progress in the enjoyment
of the right to life.22
The expression «most serious
crimes» must be read restrictively to mean that the
death penalty should be a quite exceptional measure.
The United Nation’s Economic and Social Council
Safeguards guaranteeing protection of the rights
of those facing the death penalty states that the
expression “most serious crimes” is to be understood
whereby the scope of capital punishment “should
not go beyond intentional crimes with lethal or other
extremely grave consequences.”23
As a member state
of the ICCPR, Japan is under the obligation to submit
reports, to respond to concerns raised by the ICCPR’s
surveying body, the Human Rights Committee, and to
take corrective measures that will harmonise national
legislation with its international treaty obligations.
21. Execution does not take place on Saturdays, Sundays, public holidays, January 2 and 3, Dec. 29-31 according to Article 178 of new prison law.
22. General Comment No 6 on the Right to Life, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/84ab9690ccd81fc7c12563ed0046fae3?Opendocument,
para 6.
23. Adopted on 25 May 1984, Principle 1.
FIDH - The Death Penalty in Japan: The Law of Silence / 27FIDH - The Death Penalty in Japan: The Law of Silence / 27
o date, Japan has submitted four periodic reports
to the Human Rights Committee, the fifth, due for
submission in 2002, will be discussed in autumn
2008. The first three periodic reports outline the
international elements of protection of human rights
incorporated into Japan’s legal system. Following
the third periodic report in 1993, the Committee
recommended that the Japanese Government take
all measures moving towards abolition of the death
penalty, and immediately limit the sentence to the
most serious crimes, improve conditions of detention
of detainees on death row (undue restrictions
on visits and correspondence and the failure of
notification of executions to the family), as well as
improve preventive measures of control against any
kind of ill-treatment of detainees.24
In its comments on Japan’s fourth periodic report
(1998), the Human Rights Committee continued to
express its concerns regarding the practice in Japan
of the death penalty. The Committee regretted that
“its recommendations issued after the consideration
of the third periodic report have largely not been
implemented.” The Committee also expressed its
grave concern that “the number of crimes punishable
by the death penalty has not been reduced, as was
indicated by the delegation at the consideration
of Japan’s third periodic report.” The committee
highlighted its profound concern with regard to
detention conditions on death row, to the lack of
procedural guarantees concerning pre-trial detention,
to the high number of capital convictions based
on witness evidence, and to the limited recourse
to habeas corpus.25
The United Nations Safeguards
guaranteeing protection of the rights of those facing
the death penalty list obligatory measures that
must accompany a sentence to death (mandatory
appeal, and the assistance of a competent lawyer
at all stages in proceedings). Yet, as will be shown,
Japan does not satisfy these demands. In addition,
while in the domain of conditions of detention, the
new law on prisons, which entered into force in
2006 and was revised in 2007 (Law on Conditions
of Detention and Treatment of Prisoners), has
improved the compatibility of Japanese domestic
law with international norms (including article 7 on
the ICCPR prohibiting torture, the United Nations
Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment, and
a myriad of other rules concerning the treatment of
prisoners), criticisms persist, particularly with regard
to overcrowding, the lack of medical care and the use
of solitary confinement.26
Japan ratified the United Nations Convention
Against Torture in 1999
Article 1 of the Convention Against Torture defines
«torture» as “any act by which severe pain or
suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining
from him or a third person information or a
confession, punishing him for an act he or a third
person has committed or is suspected of having
committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted
by or at the instigation of or with the consent or
acquiescence of a public official or other person
acting in an official capacity. It does not include
pain or suffering arising only from, inherent in or
incidental to lawful sanctions.”
In its 2007 report, the Committee against Torture,
after having made note of several improvements,
continued to express its concern that this definition
24. Concluding Observations of the Human Rights Committee, Japan, CCPR/C/79/Add.28, 5 November 1993, http://www.unhchr.ch/tbs/doc.
nsf/0/03bb41d87af3bc27c12563ed0045ca4a?Opendocument.
25.Concluding Observations of the Human Rights Committee, Japan, CCPR/C/79/Add.102, 19 November 1998, http://www.unhchr.ch/tbs/doc.
nsf/(Symbol)/CCPR.C.79.Add.102.En?Opendocument.
26.See the report of the Committee Against Torture, delivered 30 April-18 May 2007, CAT/C/JPN/CO/1, particularly, Paras 17 and 18.
FIDH - The Death Penalty in Japan: The Law of Silence / 28FIDH - The Death Penalty in Japan: The Law of Silence / 28
has yet to be incorporated into domestic law, and
was preoccupied also by the absence of relevant
information relating to the correct application of
the Convention that may serve to maintain current
impunity.27
The Council of Europe
In 1996, Japan obtained observer status at the
Council of Europe. In conformity with the Statutory
Resolution (93) concerning observer status, Japan
must be “willing to accept the principles of
democracy, the rule of law and of the enjoyment
by all persons within its jurisdiction of human rights
and fundamental freedoms «. Some years later, the
Parliamentary Assembly called on Japan (as well as
the United States of America) (i) to institute without
delay a moratorium on executions, and take the
necessary steps to abolish the death penalty; (ii) and
to improve conditions on death row immediately,
with a view to alleviating the death row phenomenon
(this includes the ending of all secrecy surrounding
executions, of all unnecessary limitations on rights
and freedoms, and a broadening of access to postconviction
and post-appeal judicial review).28
The situation in Japan has been studied by a mission
in 2001 comprising Mr Gunnar Jansson, President of
the Parliamentary Assembly’s Committee on Legal
Affairs and Human Rights. His mission took the
occasion to further reflect on a report concerning
the abolition of the death penalty in countries having
observer status at the Council of Europe, published
in June 2001. This report led to the adoption of
resolution 1253 (2001) and to the organisation
of a debate on the subject with Japanese
Parliamentarians. In this context, a seminar on the
abolition of the death penalty was co-organized by
the Diet Members’ League for Abolition of the Death
Penalty and Parliamentary Assembly of Council of
Europe, gathering high-level representatives from
Japanese authorities, including Presidents of both
houses, and the Justice Minister Mayumi MORIYAMA
also made a speech. The Council of Europe assembly
also resolved to reconsider Japan’s permanent
observer status, and that of the United States
America, if no significant progress was accomplished
by January 2003. This threat, however, remains to be
translated into action.
When questioned on the possibility that Japan’s
observer status at the Council of Europe would be
withdrawn, many of those met by FIDH, in 2002 as in
2008, were hardly convinced, largely believing that
such an action could be counter-productive, even if
in agreement that it is important to find an effective
means by which the Japanese Government may
understand its obligations to respect international law.
The European Union
The European Union and Japan have taken part, since
1991, in a political dialogue on human rights. It should
be the case that, in accordance with the European
Union’s Guidelines on the Death Penalty adopted
in June 1998, the question of the death penalty is
systematically raised during such dialogue sessions.
However, the conclusions from the last EU -- Japan
summit of 23 April 2008 do not mention the death
penalty. By its own admission, the European diplomats
met by the mission affirmed that Japanese authorities
pay scant attention to the EU position on the death
penalty, reflected by regular refusals to meet with
EU officials and executions that take place the day
following the few meetings that do take place.
The mission was received by three members of the
diplomatic corps at the French Embassy of Japan.
In its position as the current EU presidency, the
members of this meeting discussed the scope of
27. Paras 10 to 12 of the report.
28. Council of Europe, Resolution 1253 (2001).
FIDH - The Death Penalty in Japan: The Law of Silence / 29FIDH - The Death Penalty in Japan: The Law of Silence / 29
possible international action that could engender
change in Japan. The essential problem with
this diplomatic approach lies in the fact that all
international pressure is perceived by the Japanese
authorities as interference. It must not be forgotten
that in the region Japan is often a very useful
ally when it comes to exercising pressure in other
countries on the question of human rights. It is
important that this powerful regional democracy not
the alienated.
The embassy proposes to organise a series of events
on the issue of capital punishment during its term
as EU President. Japanese civil society will certainly
participate. Other proposals formed following
suggestions from Professor Niikura include meetings
where a broader range of problematic fundamental
rights are discussed, some focusing on Japan, such
as efforts for peace and the prohibition on arms
production (perhaps using article 9 of the Japanese
Constitution as an example).
The International Criminal Court (ICC)
Entered into force on 1 July 2002, the ICC Statute
may prove a useful tool to influence the positive
development of the abolitionist movement worldwide.
The Statute rules out the use of capital punishment,
in accordance with the modern-day evolution of
international criminal law. The Japanese Government
has shown its interest in the ICC and undertaken to
study harmonisation of the ICC Statute with domestic
law. The possibility of Japanese democracy joining
the movement of State Parties to the ICC (106 States
parties as of 1 June 2008) had given rise to a hope
for potential abolition of capital punishment even if,
when it comes to sentences applicable in national
jurisdictions, the ICC Statute defers to national laws
(article 80), a legacy of a compromise reached at the
Rome Conference. Having ratified the ICC Statute on
17 July 2007, the state must now work to incorporate
it into its domestic laws.
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IV. Violations of the
right to a fair trial
The Constitution of Japan imposes rules governing
a fair trial such as those defined by the Universal
Declaration of Human Rights and the International
Covenant on Civil and Political Rights, ratified by
Japan in 1979. Article 34 of the Constitution declares
that “no person shall be arrested or detained without
being at once informed of the charges against him or
without the immediate privilege of counsel; nor shall
he be detained without adequate cause; and upon
demand of any person such cause must be immediately
shown in open court in his presence and the presence
of his counsel”. Article 37 states, “in all criminal cases
the accused shall enjoy the right to a speedy and
public trial by an impartial tribunal. 2) He shall be
permitted full opportunity to examine all witnesses,
and he shall have the right of compulsory process for
obtaining witnesses on his behalf at public expense. 3)
At all times the accused shall have the assistance of
competent counsel who shall, if the accused is unable
to secure the same by his own efforts, be assigned to
his use by the State”. An independent and impartial
court, where rights of the defendant are guaranteed
under all circumstances, is indispensable to a fair
trial. However, as the 2002 FIDH report previously
highlighted, those sentenced to death in Japan do not
always benefit from the totality of these guarantees
that should, given the sentence of death, be even
more rigorously applied. While those sentenced
to death are not convicted under a legal system
particularly deficient except, as was shown above,
the lack of independence between the executive
and legislative arms of Government, the rights of the
defendant are palpably violated at all stages of the
process.
«Daiyo kangoku»: an unacceptable status quo
Unfortunately, the entirety of FIDH’s 2002 comments
on what occurs in Japanese police stations during
pre-trial detention remains valid and continues to
be regularly denounced by the JFBA. The Association
has, for example, published in April 2008 a brochure
entitled «Japan’s ‘Substitute Prison’ Shocks the World”
and produced a 45 minute documentary relating the
catastrophic consequences on individual lives and the
judiciary resulting from such a system.
According to provisions of the Japanese Law on
Criminal Procedure (articles 199 and following), every
person subject to an arrest warrant must be brought
before a Prosecutor at the latest three days (within
48 hours) following his arrest. The Prosecution must
provide a judge with reasons for on-going detention, a
failure to do so will result in the detainee’s immediate
release. The detention order is valid for 10 days but
may be renewed for a further 10 days, 15 days in
certain cases. This detention may also be prolonged
if the accusations emerge during the course of the
enquiry. Legal provisions in force in Japan therefore
authorise detention justifiable by the needs of the
enquiry and before any judicial decision is made. In
the case of individuals faced with serious presumptions
of guilt, detention lasts several weeks.
While this detention is theoretically in prison, it is in
reality often carried out in police stations. During
the approximate 20 day period, suspected persons,
unaware of the accusations against them and without
access to evidence of presumptions made against
them remain under the discretionary farm of police
forces, under surveillance and control day and
night. All contact with the outside world remains
at the complete discretion of the Prosecutor and
of the police who know how to use such isolation
to obtain the sought-for confession. For it is surely
the goal of such treatment, contrary to article 14.3
of the ICCPR, as interpreted by General Comment
Number 13 relative to Article 14, which states that:
« the accused may not be compelled to testify
against himself or to confess guilt. … The law should
require that evidence provided by means of such
methods or any other form of compulsion is wholly
FIDH - The Death Penalty in Japan: The Law of Silence / 31FIDH - The Death Penalty in Japan: The Law of Silence / 31
unacceptable”.29
Additionally, the Body of Principles
for the Protection of All Persons under Any Form
of Detention or Imprisonment states, “It shall be
prohibited to take undue advantage of the situation
of a detained or imprisoned person for the purpose
of compelling him to confess, to incriminate himself
otherwise or to testify against any other person”.30
Domestic law is coherent with these international
norms. Article 38 of the Constitution states, 1) “No
person shall be compelled to testify against himself.
2) Confession made under compulsion, torture or
threat, or after prolonged arrest or detention shall
not be admitted in evidence. 3) No person shall be
convicted or punished in cases where the only proof
against him is his own confession”. Article 319 of the
Law of Criminal Procedure contains a similar provision
(that is, a prohibition on the conviction of an accused
on the basis of one confession). However, everything
is performed during the detention within police
stations with the goal of obtaining from the suspects
confessions for crimes of which they are accused.
Subjected to inordinately long interviews, detainees
may undergo violence, receive threats, all with the
goal of having them confess. Such treatment may
last weeks, with the length of such investigations not
being governed by any rules or with the obligatory
presence of a lawyer. Indeed, lawyers are not allowed
to be present at the interrogation.
Regularly denounced31
as contravening all principles
of a fair trial (in respect of the presumption of
innocence, non-respect of the right to remain
silent, forced confession, cruel, degrading and
inhuman treatment), the system of Daiyo Kangoku
is particularly worrying in the case of individuals
suspected of crimes carrying the death penalty.
Human rights defenders underline regularly the risk
of judicial error that may occur as a result of such
pressure concentrated over long periods and could
lead therefore to erroneous applications of capital
punishment. Groups recall the case of Sakae Menda,
brutally interrogated over four days without sleep
at the Hitoyoshi police station with resulted in
the suspects confessing to several killings during a
burglary in December 1948. Condemned to death,
he was the first prisoner condemned to death to be
acquitted as a result of his sixth appeal. He was
released in 1983 after 12,599 days on death row.
Shigeyoshi Taniguchi, condemned to death in January
1957 on the basis of confessions made in a fourmonth
long custodial period, was also acquitted in
March 1984 after 10,412 days in detention.
In the face of such criticisms, Japanese authorities
have declared in their periodic reports in 1993
and 1998 to the United Nations Committee on
Human Rights that a strict separation at police
stations between those authorities concerned with
detention and those concerned with investigation
was maintained at all times, in order that those
conducting the investigation would not influence the
daily life of detainees. This administrative distinction
is less than satisfactory when both interrogation and
enquiry occur in the same location. The Japanese
Government also highlighted important improvements
that have been made to custody centres (heating,
air-conditioning) and argued that this form of
detention was in the best interest of suspects, who
could remain close to their home and family, and
affirmed that the length of custody was in no way
inordinate. The Government continually reaffirmed
the prohibition on all forms of violence under the
Japanese Constitution and that police officers receive
human rights related training that makes any abuse
unlikely.
29. Human Rights Committee, General Observation n°13, para 14, 13 April 1984, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb722416a295f264c
12563ed0049dfbd?Opendocument.
30. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, para. 21, 9 December 1988.
31. See notably FIDH, Japan : La garde à vue, February 1989; FIDH, The Death Penalty In Japan, A Practice Unworthy of a Democracy, 2003 ; JFBA’s
2008 alternative report to HRC, http://www.nichibenren.or.jp/ja/kokusai/humanrights_library/treaty/data/Alt_Rep_JPRep5_ICCPR.pdf
FIDH - The Death Penalty in Japan: The Law of Silence / 32FIDH - The Death Penalty in Japan: The Law of Silence / 32
Human rights defenders call for, however, nothing less
than a complete abolition of this iniquitous system.32
Free legal assistance at all stages
Officially, the rights of the defence are clearly
enumerated in Japanese law. Legal assistance is
obligatory throughout the entirety of the proceedings
from the day the accused is charged and, if the
accused does not have a lawyer, the State appoints
one. If the defendant needs jurisdictional assistance,
it is provided before she/he is formally charged.
Yet there is an imbalance of power because if lawyers
have access to information provided to the court,
they may not always consult the information held by
police and Prosecution. In addition, confidentiality
of lawyer/client relationship is not guaranteed as
regards correspondence.
The Problem of Legal Remedies
The first level of jurisdiction
In conformity with the law in force, the accused
risking death appears before one of the 50 district
tribunals, composed, until the entry into force of
the reform on the civic juries, of three judges.
This is the first stage of the Japanese criminal law.
The trial is conducted on the adversarial model
and Prosecutors are under no obligation to make
evidence favourable to the accused available unto
him or her. The accused has the onus of bringing
forth all documents in the evidence of innocence
or extenuating his or her responsibility. This onus
presupposes no means to gather such documents,
when such means are often unavailable, especially to
more indigent accused.
From May 2009, ordinary citizens will sit in these
juries, complementing the existing combination of
three professional judges. The reform introducing
this change had been promoted by a significant part
of Japan’s political class as well as human rights
organisations with a view to raising awareness among
Japanese citizens of the judicial domain. However,
many of those with whom the mission spoke remained
unconvinced as to the capacity of this new system to
improve the application of technical requirements
and to not transform the trial into a farce. Only
civic education involving the principles and purposes
of a criminal trial will make this a worthwhile
reform instead of an instrument in the service of
sensationalism.
The fear of the reforms’ fecklessness is even more
valid given the entry into force of an additional
reform, inspired by the country’s conservative forces.
Japan’s law on criminal procedure was amended
in 2007 so as to re-evaluate the position of victims
during trial, without making of them a stricto sensu
plaintiff claiming damages (“partie civile”) in the
criminal trial. What is problematic is not that, in
particular since Law n° 161 of 2004, the authorities
take more into account the right of victims to a
financial compensation for the damage resulting from
the crime and to a psychological support, and but
that victims can henceforth participate in the trial
along with the Prosecutor, question the accused and
the witnesses. Indeed, this reform combined with the
introduction of lay judges, may overhaul the balance
of the trial
These laws will indeed enter into force on 1
December 2008 and have already been heavily
criticised by human rights defenders who see in them
the destabilisation of the trial to the detriment of
the accused while at the same time not representing
an increased chance of effective compensation for
victims.
32. JFBA, Ibid. ; Concluding Observations, CAT, CAT/C/JPN/CO/1, 7 August 2007, http://daccessdds.un.org/doc/UNDOC/GEN/G07/433/73/PDF/
G0743373.pdf?OpenElement.
FIDH - The Death Penalty in Japan: The Law of Silence / 33FIDH - The Death Penalty in Japan: The Law of Silence / 33
The right of appeal
The convicted party may appeal to the Appeal Court.
And again, while this right may be guaranteed in
theory, two significant problems emerge in practice.
Firstly, an appeal is not mandatory. As a consequence,
an appeal rests with the initiative of the accused or
the Prosecution. Some detainees have been executed
upon the sole judgment of the Court of First Instance.
This was the case of Yoshiteru Hamada, executed in
September 2002, who had initiated an appeal only to
later withdraw it subsequently, rendering his original
sentence definitive.
Yet it is the existence of a mandatory appeal procedure
for those condemned to death that is the fundamental
guarantee against judicial error, an eventuality
particularly serious in the case of irreversible
punishments, such as the death. This irreversibility
has been recalled on numerous occasions by the United
Nations Safeguards guaranteeing protection of the
rights of those facing the death penalty33
and by the
Parliamentary Assembly of the Council of Europe.34
The guarantee to the mandatory appeal is even more
crucial given the reality that many of those convicted
are unaware of their right to appeal, as was explained
to the mission members by six women whose family
members are involved with the Aum Sect. Others
sentenced to death may not appeal in response to the
fact that, as the case makes its way through the system,
sentences at present tended to increase in severity, as
was explained by members of the CPR. Furthermore,
pressure of public opinion, often encouraged by
incendiary press articles (see above), constitutes an
additional form of intimidation which may have the
effect of causing those sentenced to death to abandon
their right to appeal. At the same time, the Prosecutor
himself has historically shown no reluctance to appeal
decisions that he judges to be insufficiently punitive,
even to the extent to abuse this right of appeal, as in
the case of Okunishi (see case study below).
The lack of a mandatory appeal is an uncomfortable
and festering issue. Despite the mission’s insistence
on this point, representatives of the Ministry of
Justice carefully avoided responding to all questions
and requests concerning legislative change.
Secondly, Japanese courts seem to ignore the notion of
reasonable delay, notwithstanding its clear affirmation
in article 14.3 (c) of the ICCPR. General Comment
Number 13 of the United Nations Human Rights
Committee on this article confirms that the guarantee
according to which the accused must be judged
«without unnecessary delay» applies to all stages --
both in first instance and at appeal (paragraph 10). Yet
those condemned to death are often confined to death
row for many years. The 2002 FIDH report highlighted
certain stories: Seikichi Kondo, sentenced to death by
the Appeal Court of Sendai 28 June 1977 and by the
Supreme Court on 25 April 1980, executed 26 March
1993; Sujiro Tachikawa, condemned to death by the
District Court of Matsuyama on 18 February 1976 and by
the Supreme Court on 26 June 1981, hanged 26 March
1993; and we may add to the list the case of Hakamada,
whose appeal process took 20 years to be examined.
At the same time, when an appeal is made by the
Prosecution or at the Government’s instigation,
decisions are often delivered within very reasonable
time frames.
A final appeal to the Supreme Court does exist,
however, its effectiveness is questionable as it
appears to exist in statute and not necessarily in
practice. As the 2002 report underlined, it is rare
33. Para. 6.
34. Resolution 1253 (2001).
FIDH - The Death Penalty in Japan: The Law of Silence / 34FIDH - The Death Penalty in Japan: The Law of Silence / 34
that the Supreme Court, which does not consider
the death penalty unconstitutional, strike down a
decision made by an inferior court. Once made, any
condemnation to death is considered definitive.
Retrial
For a so-called definitive decision to be challenged, a
party must request a retrial. For this to be effective,
the accused must gather «new, clear evidence», for
example evidence that information previously relied
on is contrary to reality. A retrial takes place at the
same court that handed down the original sentence
of capital punishment (the District Court in first
instance or a High Court on appeal). There is no limit
to the number of retrials except that at each retrial,
for it to be valid, new and clear evidence must be
presented. So, Mr Menda was obliged to formulate six
requests for a retrial before being declared innocent
of a crime for which he had been condemned to
death 34 years previously.
A particular problem relating to retrial and one on
which the JFBA and the Ministry of Justice disagree
relates to the suspending character of the retrial. The
law does not provide for a stay of execution during a
request for retrial, meaning that an execution may
take place before a decision has been made. If the
case was reopened, the execution is stayed.
This was the unfortunate case of Teruo Ono, executed on
17 December 1999 after having sought multiple retrials.
The request for retrial was not expeditiously sent by the
court to the Prosecutor’s office. In the meantime, Ono
was executed. Ono had spent 18 years on death row.
It is also possible that someone condemned to death
be executed even as his or her lawyer is set to
appeal, a fact known to the Minister. Such was the
case for Tsutomu Miyazaki, hanged on 17 June 2008.
It had been stated to the previous FIDH mission that a
request for retrial forms one element in the Minister’s
decision before deciding whether or not to execute.
Representatives of the Ministry met by the mission
did not disagree with the existence of this unwritten
rule but are critical of the manner in which it delays
proceedings. Given that retrial must obey strict
conditions, it was thought that the right to retrial
may be abused and requests made endlessly despite
the absence of new evidence.
A final and convincing argument made by the JFBA
in favour of a stay of executions during retrial is
the fact that all four trials sent to retrial in the
1980s led to acquittal (Sakae Menda, Shigeyoshi
Taniguchi, Yukio Saito and Masao Akahori). This
is because in four cases, the cases were formally
reopened, and after that the courts made decisions
to stay executions, according to the Code of Criminal
Procedure. Ambiguity surrounding whether or not
retrial results in a stay of execution, as the 2002
report highlighted, represents a serious breach of
the UN Safeguards Guaranteeing Protection of the
Rights of Those Facing the Death Penalty (paragraph
8) which states, “Capital punishment shall not be
carried out pending any appeal or other recourse
procedure or other proceeding relating to pardon or
commutation of the sentence”.
Pardon
Only three of the condemned have benefited from a
pardon since 1969 and none since 1975. The request of
clemency must be made by the wardens, prosecutor or
director of probation office. If an inmate request pardon,
warden must make an application with his or her opinion
regarding the case. Victims are not entitled to request or
make an application. In the Harada case, the brother of
the victim asked pardon of the offender from the Minister
of Justice, but it was not the procedure under the law. A
refusal of clemency does not require justification.
A request for pardon does not serve to suspend the
execution which, once more, is contrary to U.N.
Safeguard No. 8
FIDH - The Death Penalty in Japan: The Law of Silence / 35FIDH - The Death Penalty in Japan: The Law of Silence / 35
Case study: Matsumoto
This case was brought to the attention of the mission by Shimaya Naoko, member
of the NGO Forum 90, working successfully for 30 years in the case of another
person sentenced to life imprisonment, Mr Kazuo ISHIKAWA (Sayama case). The
facts relating to the Matsumoto case were communicated to him by Mr Okamoto,
who wrote to him from Osaka prison.
Born in 1951 and mentally disabled following mercury poisoning, Kenji Matsumoto
was condemned, 4 April 2000, for two murders committed during robberies.
There is no question that he was at the scene of the crime. His brother, who
committed suicide before arrest, had been accused of conspiracy. Matsumoto’s
lawyer relied on a decision of the United States Supreme Court concerning
mentally disabled individuals to press the case for a retrial or for a pardon. In
vain. The Japanese court, while recognizing the mental state of Mr Matsumoto,
did not conclude that his disability rendered him legally irresponsible for his
acts. Currently, after not having walked since his arrest, he is confined to a
wheelchair. He has also attempted suicide. When meeting with an officer from
the Office of Criminal Affairs, on 31 July 2008, and in response to the mission’s
questions regarding this case, it was stated that no comment could be made so as
to preserve the independence of the judiciary. Furthermore, the official claimed
that Matsumoto’s mental disability did not prevent him from understanding his
acts and of being condemned to death.
This case is symbolic of the deterioration in detention conditions since 2002, of
the poor retrial system, and of the fate reserved for mentally disabled individuals
under Japanese criminal law.
FIDH - The Death Penalty in Japan: The Law of Silence / 36FIDH - The Death Penalty in Japan: The Law of Silence / 36
Case study: Matsuo Fujimoto
In 1951, in Kumamoto Prefecture (Kyusyu area), an explosion
occurred at a house of prefectural public officer who had been
working as an officer in charge of hygiene related affairs. Two
people were injured by the explosion and Fujimoto was arrested
on charge of attempted murders. Court sentenced him to 10 years
imprisonment. The former officer reported to the higher officer
that Fujimoto was suffering leprosy and accordingly Fujimoto was
put into a leprosarium, an isolated facility which housed leprosy
patients, and then Fujimoto had a grunge against the former
officer. But after the sentence was handed down by Kumamoto
District Court in June 1952, Fujimoto escaped from the detention
facility which was located inside the leprosarium. The following
month, July 1952, the former officer was stabbed and killed on the
road. Fujimoto was rearrested on charges of murder and so on. A
written statement in which Fujimoto admitted to the murder was
made, but after that Fujimoto continued to claim his innocence.
Trials were held in the specially made courtroom which was located
in the leprosarium. He was executed in Sep. 1962, on the very next
day of his third request of retrial was rejected.
Fujimoto was the victim of prejudice, deep seated at the time,
against those with leprosy and, in addition, of a judicial error.
This may be the case of an innocent party being executed as a
consequence of widespread discrimination that contributed to a
biased judgment. Public opinion is today supportive of the fight
against discrimination on the grounds of leprosy. Such an example
could consequently be used to influence public opinion and dislodge
the popularity of capital punishment.
FIDH - The Death Penalty in Japan: The Law of Silence / 37FIDH - The Death Penalty in Japan: The Law of Silence / 37
V. Conditions of detention
and of execution
Since the last FIDH mission on the death penalty
in Japan in 2002, there have been some changes
regarding the legal framework and the situation of
detention houses. The Prison Law was replaced by the
Law Concerning Penal Institutions and the Treatment
of Sentenced Inmates, entered into force in May 2006.
This law initially applied only to convicted prisoners
other than death row inmates. The scope of this law
was revised in 2007 in order to cover pretrial inmates
and death row prisoners as well. The law was then
renamed (Law on Penal Facilities and the Treatment of
Inmates, which entered into force in June 2007). The
modern and “hi-tech” equipped new buildings of the
Tokyo Detention House and Nagoya Detention House
were completed respectively in 2007 and 2008 and
were proudly presented to the FIDH delegation. The
prison law leaves space for interpretation by individual
wardens, thus we may find different treatment and
rules in different detention houses. Prisoners are
given a written booklet of prison rules, but it is only
publicly available through application of disclosure
based on the Law Concerning Access to the Information
held by Administrative Organs.
Living Conditions in the Detention Houses
In the Tokyo Detention House, the 12-story
administrative building, and the 11-story south and
north cellblocks were completed respectively in 2003
and 2007. The central building is the administrative
offices; on top of it, there is a helipad. Four wings
connecting to the central building are the cells and
on top of the four constructions, there are fenced
exercise places for the inmates (see picture below).
The Nagoya Detention House has two main buildings,
east wing and west wing, respectively 8-story and 12story
tall. The Nagoya Detention House is located in
the heart of Nagoya city.
The capacity of Tokyo Detention House is 3010 for
pretrial and convicted inmates, and the current
occupation is 2300 (until July 29); among them there
are 52 death row inmates. The capacity of the Nagoya
Detention House is 1000 inmates and the current
occupation is 733; 11 of them are death row inmates.
The security in the new buildings of the detention
house is strengthened, with 913 spots of fingerprint
reading devices and 24 hours video surveillance in
Tokyo Detention House. The iron bars around the
cells and prison buildings are replaced with tempered
foggy-surfaced glass. Transit systems are built in the
new buildings to transport boxes of inmates’ personal
belongings.
In the Tokyo Detention House, the inside space of
a new single cell is measured 3.75 meters deep
and 2 meters wide which is bigger than the old cell
(measured 3.3 meters deep and 1.8 meters wide).
In the Nagoya Detention House, FIDH was told that
a single cell measured 5.9 square meters, which
is bigger than the one in Tokyo Detention House.
However, in practice, the space of a single cell in the
Nagoya Detention House is actually much smaller than
the said measurement. One explanation is that the
thickness of the walls is included in the calculation.
Death row inmates are kept in single rooms. A single
room is equipped with a wash basin, a toilet seat, a
Tokyo Detention House
FIDH - The Death Penalty in Japan: The Law of Silence / 38FIDH - The Death Penalty in Japan: The Law of Silence / 38
book shelf, a folded low table and futon mattress
for sleeping; there is no bed in the cell. There is no
separate space for the toilet. Only cold water is
provided from the faucet. FIDH was told by one of
the inmates’ mother that in the past, each death
row inmate could keep up to 20 boxes of personal
belongings in the detention house. The inmates have
to apply to access the boxes to get whatever they
need. Now, only three boxes of personal belongings,
including toilet tissue, are allowed in the detention
house. However, due to limited space, they can only
keep a suitcase of 50 liter of personal belongings in
the cell. On one side of the cell, there are double
foggy glass windows and a hallway where sometimes
the guards patrol; on the other side, there is an iron
door to the main hallway and a glass window from
where the food is sent in. Inside the cell, there is no
air-conditioning nor heating. The temperature and
lighting are controlled from the main hallway.
Collective rooms, which can usually accommodate
6 to 8 convicted inmates, are similarly equipped,
except that the toilet is separated from the rest of
the living area with walls and a door. In the Nagoya
Detention House, single rooms and multiple rooms are
similar as in the Tokyo Detention House, except for
the sizes of the cells.
Outside of the cell, next to the door, a plate
indicates the current activities and whereabouts of
the inmates such as exercising, bathing, meeting,
medical checkup, investigation, out to court/working,
in the cell or other activities. The inmates can be
monitored from the central monitor room by the
prison staff.
Death row inmates are not required to work during
detention. The officers at the Nagoya Detention
House told FIDH that if death row inmates wish to
work, they can be assigned some work such as making
paper baskets in their single cell.
The daily schedule of a death row inmate is the same
as a pretrial defendant:
Tokyo Detention House
7:00 Wake-up
7:15 Roll Call
7:25 Breakfast
11:50 Lunch
16:20 Supper
16:40 Roll Call
17:00 Free Time
21:00 Lights-Out
Nagoya Detention House
7:00 Wake-up
7:40 Breakfast
11:30 Lunch
16:20 Supper
17:00 Prepare for Sleep
21:00 Lie-down/ Lights-Out
One Sapporo-based lawyer who defends death row
inmates told FIDH that from the cell of the old
detention house building, the inmate could see the
sky from the window, and he could even keep insects
as pets. But with the “modernization” of prison cells
and buildings, the inmates are completely shut out
of the outside world. They cannot see the sky, the
lawn, and they cannot smell the soil or feel the wind.
One mother of a death row inmate told FIDH that
when she visited her son she used to show him the
sky. She said that in the old building, her son could
see the sky. However, from the newly built cells with
double window, it is impossible to see the sky.
When staying in the cell in the daytime, the inmates
must sit in a certain spot with a certain position; they
are not allowed to lie on the futon mattress. FIDH
was told this is for security reason and so the prison
staff can monitor the inmates’ activities in the cell
and it is easy to count them. Whenever prisoners
FIDH - The Death Penalty in Japan: The Law of Silence / 39FIDH - The Death Penalty in Japan: The Law of Silence / 39
encounter outside visitors during their work, they
must not look at the visitors in the eyes so they have
to bow their heads and wait for visitors to pass.
Visits and Contacts
Visits and Meetings
After the Law Concerning Penal Institutions and
the Treatment of Sentenced Inmates was modified
in 2007 (and renamed Law on Penal Facilities and
the Treatment of Inmates), inmates do not have
limitations on how many times they can meet with
lawyers and no officers are required to attend the
meeting and take notes. However, this does not
apply to death row inmates.
Article 89 of the Law Concerning Penal Institutions
and the Treatment of Sentenced Inmates stipulates
that visits to inmates by the following persons may
be allowed: (i) relatives of inmates; (ii) persons who
are required to meet inmates to deal with material
businesses of inmates relevant to their status, legal
or professional conditions; and (iii) those whose
visits are considered to give good effects on inmates
in connection with their rehabilitation. Other
individuals such as those who have continuous and
previous relationship with an inmate can apply for
visits and can be allowed.35
One mother said that since the Law on Penal
Facilities and the Treatment of Inmates entered into
force in 2007, only four members from her family
and friends are allowed to meet with her son. In
practice, death row prisoners are often only allowed
to meet with three persons by the prison authority.
The law specifies two categories of visitors: one
category of visitors has a right to see the inmates,
while the other can be allowed to see him/her on the
discretion of the warden. For this second category, it
appears from the interviews carried out by FIDH that
the decision can be very arbitrary.
According to the law, a list of visitors will be
approved by the prison authority but there is no
limitation of the numbers of visitors. However, in
Nagoya Detention House, the maximum number
of visitors to one inmate is five and the names of
these five people have to be indicated, not including
family members and lawyers; while in Tokyo
Detention House only three visitors are allowed
on the list. At most 3 people are allowed for one
visit, and an inmate can only receive one visit a
day. The Law does not require the attendance
of a prison officer during visits by lawyers who
are legal representatives of the inmates, but in
practice, according to families of detainees met by
the FIDH mission, a prison officer is often present
during a visit of a death row inmate, taking notes
of the conversation. Visits are usually limited to 30
minutes, sometimes even less.
One family member of a death row inmate told
FIDH that the visiting time used to be a maximum 30
minutes per visit. Now the maximum meeting time
is only 15 minutes, once a day, and only one visitor
allowed is in an individual room. During the meeting,
the prison officers will record or take notes of the
dialogues between the death row inmates and the
family members or lawyers. MOJ and prison officers
explain that it allows them to check the inmate’s
mental condition. Another inmate’s family member
said sometimes an experienced senior officer will just
let them talk without taking notes. A meeting with
a death row inmate is always under surveillance; a
daughter thinks it is difficult to express emotions and
exchange information under such monitor.
35. Japan Federation of Bar Association, October, 2006, “Information for Prison Inmates” (New Version Corresponding to the Newly Enacted Law
Concerning the Treatment of Sentenced Inmates), third edition.
FIDH - The Death Penalty in Japan: The Law of Silence / 40FIDH - The Death Penalty in Japan: The Law of Silence / 40
As a victim’s brother and death penalty abolitionist,
HARADA Masaharu, told FIDH that there was no
limitation on meeting the defendant before the
final verdict. After the verdict, when he wanted
to visit the murderer of his brother, Harada got the
permission from the MOJ and the warden told him
that because he had been corresponding with the
defendant he could continue meeting the defendant
after the verdict without limitation. Harada thinks
the rights of victims’ families have been neglected by
the judicial system. He suggested that the victims’
families should be authorized to meet the murderer
in order to know what has happened.
Communication and Correspondence
The law does not restrict the right of death row
inmates to send and receive letters. However,
based on a circular by the Director General of the
Correction Bureau dated March 15, 1963, death row
inmates “should be separated from society, and
restrictions on their communication should be a
logical obligation from a viewpoint of securing their
custodial conditions and preventing social unrest”.36
The restrictions made by the Correction Bureau
seem quite arbitrary and are seriously hindering the
rights of death row inmates. In the Nagoya Detention
House, the correspondence with a death row inmate
is limited to five authorized correspondents, and in
most cases, they are family members or lawyers.
In practice, as Okunishi for example, can only
communicate with three approved persons. The
Nagoya Detention House explained that the maximum
number is five people but the authority can give
permission to less than five people.
Besides the restriction on correspondence, the
letters that the death row inmates send out are
usually censored, even the letters they send to their
lawyers. Each death row inmate is only allowed to
send one letter a day. Result from the censorship,
one family member of a death row inmate told FIDH
that the content of the letter between her and her
father became more and more formal. They only
exchange information in the letter, and less and
less emotions are shown. As a result, if the letter
was found “inappropriate” by the prison authority,
parts of the content can be deleted, erased or the
letter will not be transmitted to its recipient. The
content of the letters between an inmate and his
correspondent cannot include any mention about
another person or an unrelated third party because it
be seen as “inappropriate”. Families and friends can
send gifts or daily goods in package to the death row
inmates through mails and authorized shops. Limited
authorized items on a list approved by the prison
authority may be sent to the inmates. FIDH saw one
small grocery shop outside of the tall walls of the
Tokyo Detention House. The shop is authorized by
the prison and they sell only authorized items such as
underwear, canned food, packed cookies.
Medical Care and Health
Medical and Mental Care
There are 10 medical doctors, 8 nurses and 3
pharmacists in the Tokyo Detention Center, and
regular physical checkups are provided in the facility.
Upon request and with the approval of the warden,
the inmates can make an appointment with the
dentist or receive treatment from outside of the
prison. Normally, an inmate has to wait for 6 to 12
months for the dentist. There are 2 psychiatrists but
there is no mental checkup on a regular basis. Mental
diagnosis is provided upon request or through the
observation of the prison staff and medical personnel.
The inmates are given basic health checkup such
36. Japan Federation of Bar Association, November 22, 2002, “Recommendations on the Capital Punishment System”.
FIDH - The Death Penalty in Japan: The Law of Silence / 41FIDH - The Death Penalty in Japan: The Law of Silence / 41
as X-ray checkup, blood pressure check, height and
weight measurement, eyesight and hearing check,
and medical consultation. In the Nagoya Detention
Center, annual physical checkups are provided. As for
mental checkups and treatment, the officers said to
FIDH that psychiatrists are contacted only when the
prison officers notice the unusual mental condition
of the inmates or upon inmates’ request. The FIDH
delegation questions the fact that the prison guards
may not be able to make correct judgments of a
person’s mental condition, therefore, there may be
delay or neglect of mental treatment for those who
are in need. A systematic psychiatric follow-up would
be relevant. JFBA points out that there is a serious
shortage of full time physicians at prisons so many
inmates do not receive timely medical care.
Exercise and Hygiene
The inmates are allowed to have 30-minute physical
exercise every day except for holidays and rainy days.
The exercise ground is located on the rooftops of
the detention houses. There are single and multiple
exercise rooms. Death row inmates and pre-trial
detainees have to stay in single exercise rooms . The
exercise rooms are covered with double fenced walls
and ceilings, and an iron door. Pretrial and convicted
inmates are subjected to the same rules as regards
exercise.
In the summer, the inmates take a bath three times
a week, while in the winter, twice a week. There are
single and multiple bathrooms. Collective bathrooms
can accommodate up to five persons. Bathing time
is limited to 15 minutes, but for elderly inmates the
bathing time is 20 minutes long.
Suicide Prevention
The officers of the Nagoya Detention House explained
the methods they use to prevent death row inmates
from committing suicide:
1. to announce the execution order on the same
day of the execution;
2. 24-hour closed-circuit camera surveillance
system to monitor inmates’ activities;
3. the existence of a “suicide prevented cell”;
4. besides family members and lawyers, the
death row inmates cannot receive any visitors or
letters without the permission from the detention
house authority, in order not to stimulate them.
Recreation
Before 1997, the inmates in Tokyo Detention House
were allowed to gather in one room and watch
movies taped by the prison staff from TV broadcast
three times a month, as FIDH mission was told by
the prison staff. Since the regulation changed, the
inmates are only allowed to watch movies in separate
rooms. For death row inmates, they are not allowed
to watch TV, but upon request they can watch taped
videos. During free time, the inmates in the Nagoya
Detention House can order books from a listed
catalog provided by the prison library. Everyone can
borrow three books at one time.
Complaints
In 2006, a Board of Visitors for Inspections of Penal
Institutions was established and in 2006 the board
started to examine the condition in the prisons
and detention houses around the country. There
are 74 inspection boards for 74 prisons throughout
Japan. Local bar associations can recommend one
member to be on the board. The board members are
appointed by the Ministry of Justice. It is essential
for the board to have at least one lawyer and one
physician. The other members may be professors
of criminal justice, representatives of the local
government, or anyone that the wardens request to
be on the board. The board members are entitled to
meet any inmates, that is, any inmates will have the
chance to make complaints to the board members.
According the information gathered, the boards can
make suggestions to the detention houses and their
reports are either made public or kept confidential,
depending on the Board.
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The establishment of the inspection board can be
seen as an improvement for prison management. In
some prisons, for example, after the inspection and
suggestions made by the committee, the inmates
can use a spoon for eating curry instead of using
chopsticks; in another prison, where there was no
air-conditioning and clocks in the cells, after the
inspection, fans and clocks were added. However
since it is a relatively new system, and the existence
of the board is not well known to the inmates and
their families, the evaluation of the outcome is still
limited.
There are different administrative complaint
procedures available to prisoners, however, all
are open to abuse by the prison authorities.
The first is a request for an interview with the
prison warden, in case of physical abuse or moral
harassment or whatever incident, but often such
a request is transmitted through the very guards
that are the subject of the prisoner’s complaint.
The same kind of complaint may occur when an
inmate tries to challenge the interdiction, due
to the warden’s intervention, of books or letters.
An answer is compulsory. Another procedure is a
petition to the prison inspector officer of Minister of
Justice, who visits the prison at least once a year.
The petition may be submitted orally or in writing
without the presence of prison staff. After the
first kind of procedure, if not satisfied, the inmate
can file a complaint to the Head of the regional
correctional headquarters, who reviews the case.
A third mechanism, in case of non satisfaction, is a
confidential written petition directly to the Minister
of Justice. If the Minister finds that everything
is correct, he submits the decision to a panel of
specialists (one panel in each region, composed
by a member of JFBA, a doctor, two academics…).
If the panel finds that the decision is not legal or
not appropriate, a recommendation is made to the
Minister who should respect it (for the last 25 years,
the Minister did not follow the panel’s decision in
only two cases). If the Minister finds the situation
correct, the prisoner can initiate an administrative
complaint to the court.
All prisoner requests are open to censorship and
the mere fact that a prisoner seeks redress may
often be considered as an attack on the integrity
of prison and staff and an indication of a prisoner’s
disorderly, problematic behaviour or lack of remorse
and open him to retaliation. All the requests except
for request of interview with warden should be made
confidentially. In fact, if the secrecy of the complaint
is supposed to be granted, as soon as the head of
the regional correctional headquarters answers
the questions, the case becomes public. There are
also three judicial procedures open to prisoners;
administrative lawsuits, civil law suits against the
state for compensation, and addressing complaints
or accusations to the public prosecutors office. Each
are difficult to access because of the lack of state
legal aid, the censorship and the presence of prison
officials at meetings with counsel.37
The legality of
these actions has been challenged in court but to
no effect. Prisoners are generally prevented from
appearing in court, are unable to examine witnesses,
and often lose due to non-appearance. Furthermore,
the courts recognize the broad discretion of the
prison authorities over inmates. For these reasons
it has proved very difficult for an inmate to achieve
judicial remedy, as already reported in the FIDH
report of 2003.
Execution
According to Article 475 (2) of the Law on Criminal
Procedure, execution takes place in the six months
following the definitive condemnation to death and
within five days of the execution order signed by the
Minister for Justice.
37. Sentenced inmates other than death row inmates can see legal representatives in private.
FIDH - The Death Penalty in Japan: The Law of Silence / 43FIDH - The Death Penalty in Japan: The Law of Silence / 43
The officers of the MOJ said to FIDH that before the
execution, they have to examine all conditions and
information to make sure that there are no possibilities
and reasons to let the inmates live. Nevertheless, with
cases like HAKAMADA Iwao, even though his case might
be a miscarriage of justice and even if his family and
lawyer found him incompetent and mentally ill at his
70s, the chance for him to be granted clemency seems
very thin because the MOJ does not believe he could
be innocent and his old age is not one of the conditions
to take into consideration.
In 2007, the MOJ started to disclose information
on the executed inmate such as the name, crime,
place, date, etc. in a press conference just after the
execution. Previously, only the number of persons
executed was disclosed. During FIDH investigation,
the officers of the MOJ and the detention houses
refused to answer questions about individual death
penalty cases and refused to reveal any details of the
execution process. Therefore, FIDH had to find other
resources to portray the practice of the execution to
expose its problems.
The execution order is made by the prosecutor to
the warden, and the warden to the death row inmate
himself. The executions in Japan are carried out in
7 detention houses, namely, Fukuoka, Hiroshima,
Miyagi, Nagoya, Osaka, Sapporo and Tokyo.
Therefore, the 10238
death row inmates are kept in
these 7 detention houses because only these 7 have
execution chambers.
FIDH delegates could not get more details and
information regarding the procedure of the execution
because the prison staff that the delegation
interviewed were very reluctant to answer questions
such as the location of the execution chamber in
the detention house, the procedure of execution,
the treatment of the death row inmates before the
execution, the condition and treatment of the elderly
death row inmates.
A concrete and in-depth description of the execution
procedure was provided by Noguchi Yoshikuni, former
official of Tokyo Detention House, based on his
experience in 1971. Noguchi told the FIDH delegation
that at that time, the execution order was given to
the death row inmate 24 hours before his execution.
After the execution order was given, the inmate was
moved to a separate single cell on a different floor
from the other inmates. A security guard would watch
him face to face for 24 hours. The time before the
execution allowed the inmate enough time to ask for
the last visitors and to write down his last word. The
last meetings with family members or friends were
held in a small room for 30 minutes or more.
The execution notification is given to the inmate 1 or 2
hours before the execution in the morning so the inmate
usually does not have enough time to meet whoever he
wishes to meet. The death row inmate is notified after
breakfast or at the exercise ground. After he receives
the notification, the warden will ask his opinions about
how to deal with his personal belongings.39
In order to
keep his mind in peace, the inmate can spend some
time to talk with the religious advisor. The inmate
will then be brought to the execution chamber.40
The
execution chamber is usually located in a small concrete
building inside the detention house.
When an execution is about to be carried out, the
prosecutor, a prosecutor’s assistant, the warden,
the prison officers, custody chief or any authorized
persons permitted by the prosecutor or the warden
such as a Buddhist monk or a priest will be present at
the execution. The prosecutor’s assistant is responsible
for writing a report with details of the execution such
38. As of September 11, 2008.
39. In practice, in the late 90’s, inmates were allowed to write down their last words, but it seems not to be the case anymore.
40. 近藤昭二，August 1, 2008, 《誰も知らない「死刑」の裏側》。
FIDH - The Death Penalty in Japan: The Law of Silence / 44FIDH - The Death Penalty in Japan: The Law of Silence / 44
as the starting time and finish time, the process and
the condition of the inmates after the execution.41
The execution chamber is a two-storey building (see
pictures 2 & 3). The death row inmate will be brought
into the execution chamber on the second floor.
Curtains separated the entrance and the execution
ground. On the entrance side, there is a Guan Yin (a
Buddhist goddess) statue, which usually the inmate
can pay his respect before stepping onto the execution
ground. The inmate is blindfolded and handcuffed, and
brought to the execution ground on the second floor. On
the floor there is a square door and a rope is hanging
from the ceiling. The inmate stands facing the curtains.
The prosecutor, warden, and prison officers enter
the execution chamber from the opposite side of the
execution ground. They stand on a platform across from
where the inmate stands. Between the prison staff and
the inmate, there is a glass wall.
On the same side of the inmate, behind one wall there
is the space for the executioners. Usually, there are
three to five executioners standing on the other side
of the wall behind the curtains. There are handles
installed on the wall for the executioners to pull up
and down the rope. When the execution time comes
and the order is given, three or five executioners pull
the handles simultaneously so no one will know who
actually execute the inmate. The execution takes
about 1.5 hours. Five minutes after the execution,
the inmate will be lowered to the basement of the
chamber and be examined by the prosecutor and a
medical doctor. The medical doctor will check the
heartbeat of the inmate and issue a death certificate
indicating the reason of death as heart failure. The
rope then can be removed from the inmate after the
execution. After the examination, the body will be
cleaned and sent to the family in the rare cases where
it claims the body. Usually the body is cremated and
the family receives the ashes.
The family members of the inmates receive the
notification after the execution is carried out, which
is particularly harsh for them. This procedure draws a
lot of criticism and the United Nations Human Rights
Committee has made several recommendations to the
Japanese government, but those recommendations
have not been implemented so far.42
The last minute
notification to the death row inmates and postmortem
notification to family members may deprive
the inmates of the possibility to seek retrials,
suspension of execution or petition for clemency.
41. 近藤昭二，August 1, 2008, 《誰も知らない「死刑」の裏側》。
42. CCPR/C/79/Add.28, 5 November 1993; CCPR/C/79/Add.102, 19 November 1998, para. 21.
Execution Chamber
FIDH - The Death Penalty in Japan: The Law of Silence / 45FIDH - The Death Penalty in Japan: The Law of Silence / 45
Execution Chamber at
Tokyo Detention House
HAKAMADA Iwao at his youth
Case study: Hakamada
HAKAMADA Iwao (袴田巖, born on March 10, 1936) was formerly a professional
boxer in Japan. He was accused of murder, arson and robbery, and was
sentenced to death. At the time Hakamada was arrested, he was 30 years old
and he is now 72.
On June 30, 1966, a miso manufactory in Shizuoka was set on fire. The executive
of the miso manufactory, his wife and two children were found stabbed to
death and ￥200,000 were stolen. Two months later, Hakamada was arrested
and charged with murder, arson and robbery based on his confession drawn
under police custody; Hakamada later claimed that he had been tortured under
long interrogation. Some tiny blood stains were found on Hakamada’s pyjama
and the smell of petrol oil was also found. The cloth with the blood stains was
sent for examination by the police research institute. The scientists told the
police that the blood stain was not sufficient for examination so it could not be
presented as hard evidence. Therefore, the prosecutor presented another pair
of blood-soaked pants found in a miso tank in August, 1967 and claimed that
Hakamada had been wearing them during the crime. However, the pants did
not fit Hakamada at all and because the pants had been soaked in the miso tank
for some days, no DNA evidence could be found from the clothes. Hakamada’s
lawyers initiated a petition to fight against what they considered as fabricated
evidence, but the prosecutor replied that unless the lawyers could prove who,
how and why the clothes were found in the miso tank, the clothes should be
seen as hard evidence.
FIDH - The Death Penalty in Japan: The Law of Silence / 46FIDH - The Death Penalty in Japan: The Law of Silence / 46
Aside from the blood-stained pants, the only evidence the police held was Hakamada’s
confession under police custody which was believed to be obtained under torture
because Hakamada was detained in the police station for 23 days before being indicted
and had been through at least 20 hours of interrogation. Under police custody, Hakamada
had received only three visits by his lawyers.
Hakamada had made a confession under police interrogation but he pleaded innocent in
court and afterwards. On September 11, 1968, Hakamada was sentenced to death by the
Shizuoka District Court, a decision upheld later by the Tokyo High Court and the Supreme
Court in 1980. Hakamada filed an appeal for retrial in 1981 and the appeal was rejected
by the Shizuoka District Court in 1994, a decision upheld by the Tokyo High Court in 2004
and then the Supreme Court on March 24, 2008. The second appeal filed by Hakamada’s
lawyers was sent out on April 25, 2008.
Kumamoto Norimichi was one of three judges who handled Hakamada’s case 40 years ago
at the district court. He told the public in 2007 that he always believed Hakamada is
innocent. Mumamoto said, in 1968, before the judges handed down the death sentence
of Hakamada, he argued for acquittal but was outvoted by two other senior judges.43
When Hakamada’s death sentence was finalized in 1980, he was moved to the death
row and began to act strangely. His sister said he used to have good spirits and be very
encouraging to others. After so many years detained in an individual cell, Hakamada was
found mentally disturbed and incompetent and he started to refuse visitors. He did not
receive any mental treatment until now. He could not recognize his family members and
lawyers and he refused to meet with anyone. Under the assistance of Diet members
of the Legal Committee, the family members met him a few times but now he refuses
any visits from his family. On November 27, 2007, he lastly met with his sister and on
December 11, 2007, he received visitors from the boxer association.
Since Hakamada is incompetent, his sister HAKAMADA Hideko has to file an appeal for
him. Mental treatment for Hakamada was proposed to the Ministry of Justice by his
lawyers, but the proposal was rejected. As of 2008, Hakamada has been in prison for 42
years, the longest imprisonment among current Japanese death row prisoners.
43. The Japan Times, May 9, 2008, “On death row and a cause celebre”.
FIDH - The Death Penalty in Japan: The Law of Silence / 47FIDH - The Death Penalty in Japan: The Law of Silence / 47
Conclusion
The FIDH mission was able to confirm that the
conditions of detention of death row prisoners have
slightly improved over recent years, with the entry
into force of a new law regulating prisons in 2006
(amended in 2007 to include death row prisoners and
pre-trial inmates in its scope). This legislation seems to
have brought transparency to the previously unwritten
rules which saw visits depend on the goodwill of the
Prison Director. Effective since 2006, each detention
centre now includes a Board of Inspectors, with the
authority to visit detention centres.
However, the number of executions is on the rise.
Since 1993, 76 detainees have been hanged. In 2005, 1
person has been executed. In 2006, 4 persons; in 2007,
9 persons. By September 2008, already 13 persons have
been executed. Altogether, Japan’s detention centres
currently hold 102 detainees condemned to death
(they were 77 in 2005).
Legal provisions in force in Japan authorise
detention (Daiyo kangoku) justifiable by the needs
of the enquiry and before any judicial decision is
made. In the case of individuals faced with serious
presumptions of guilt, detention lasts several weeks.
While this detention is theoretically in prison, it is
in reality often carried out in police stations. During
the approximate 20 day period, suspected persons,
unaware of the accusations against them and without
access to evidence of presumptions made against
them remain under the discretionary control of police
forces. Everything is performed during the detention
within police stations with the goal of obtaining from
the suspects confessions for crimes, and lawyers
are not allowed to be present at the interrogation.
Reforms made up to now have not addressed
adequately those concerns.
There is no equality of the arms between the
accused and the prosecution, the prosecutor having
no obligation to transmit information favourable to
the accused to his/her lawyers. The reform which
will enter into force in December 2008, whereby the
victims will sit with the prosecutor and be able to
question the accused as well as witnesses, will have
no impact on the right of victims to compensation.
In addition, FIDH fears that this reform may further
strengthen the inequality between the parties to the
trial.
The appeal is not mandatory and the law does not
guarantee that a retrial or a clemency application
suspend the procedure of execution. The provision
establishing that mentally ill people cannot be
punished under criminal law seems poorly applied in
practice.
Last but not least, a reform entering into force before
the end of 2008 will include lay judges in criminal
trials, and a pre-trial meeting where the presence
of the accused will be optional. FIDH fears that this
may give rise to a higher number of condemnations to
death because of the lack of training and sensitization
of the lay judges, in a context of increasing repressive
policies. In addition, this raises fears that speedy trials
may be to the detriment of fair justice.
Secrecy surrounding executions is also a cause of
concern. The prisoner’s relatives often learn the
execution after it has been carried out. The press
conference held by the Ministry of Justice just after
the execution is a progress in the right direction since
the name of the executed and a brief description of
the crime are provided to the public. However, it also
makes the death penalty part of daily life, and an
acceptable practice to all. Medical and psychological
support for death row prisoners is largely insufficient.
FIDH - The Death Penalty in Japan: The Law of Silence / 48FIDH - The Death Penalty in Japan: The Law of Silence / 48
Recommendations
A. To the Government and Japanese
legislators
1. Adopt a moratorium on convictions to death
and on all executions, with the final aim of complete
abolition.
In the meantime:
2. Reduce the number of crimes punishable
by the death penalty so that capital punishment be
applied to only the most serious crimes.
3. Implement the basic democratic principle of
separation of powers, by separating more clearly the
relations between the Ministry of Justice, the Supreme
Court, Prosecution and the media.
4. Abolish the system of Daiyo Kangoku and
reform the custody system at police stations, by
dramatically reducing the length of custodial detention
and placing detainees under judicial authority with
the provision for full-fledged rights of the defence
(obligatory presence of a lawyer, and obligatory
recording of interviews).
5. Ensure that those charged with crimes
attracting the death penalty benefit from total lawyerclient
confidentiality, from the moment of arrest until
the final stage, including as regards correspondence.
6. Establish in law, and not through Supreme
Court regulations, all details of the prejudgment
stage, in order to avoid future problems.
7. Ensure that all parties have all information
concerning them made available to them, meaning
that Prosecutors must not be able to withhold
information favourable to the accused.
8. Effectively recognise the right of victims to
civil reparations so as to prevent the perception that
the death penalty is the only compensation, being the
only means at their disposition.
9. Re-evaluate the need for and risks of the
presence of victims’ families alongside the Prosecutor,
which represents an adoption of the inquisitorial
judicial model standards in what is, however, an
adversarial model.
10. Rebalance the system of deliberation by jury
by introducing a rule requiring a unanimous decision.
11. Institute mandatory appeal procedures for all
cases involving capital punishment.
12. Guarantee in law that executions will not
take place while a retrial or request for pardon is
pending, and thus ensure that retrial serves to suspend
execution.
13. Continue to improve, with the formation of the
Board of Inspectors in 2005, the possibility of informing
the Japanese public of conditions of detention on
death row, notably by allowing Parliamentarians,
journalists, and representatives of international
organisations to visit death row, so that they may
witness conditions of detention and gather detainees’
complaints.
14. Guarantee the physical and mental health
of detainees with the aid of more regular checkups,
performed not only upon the detainee’s request.
Particular attention must be paid to mental health,
which should be monitored more than simply at the
moment of execution and should not serve as a pretext
to reduce detainees’ rights.
15. There should not be limitations on number
and persons of visitors to the death row inmates. The
death row inmates should be able to send and receive
letters and information more freely.
FIDH - The Death Penalty in Japan: The Law of Silence / 49FIDH - The Death Penalty in Japan: The Law of Silence / 49
16. End the practice of secrecy surrounding the
death penalty (in particular, concerning all aspects
of the post-conviction stage: that is, conditions of
detention and of execution).
17. Intensify and improve international human
rights training of judges, lawyers, police and
detention centre staff.
18. Ensure psychological supervision is provided
to detention centre staff in contact with those
sentenced to death.
19. End the apparent Government media
strategy of tendential analysis and organize instead
awareness-raising campaigns that represent all sides
of the debate, including:
a. the real nature of public opinion, particularly
that of victims’ families (as not all support the
death penalty),
b. the limited effectiveness of capital
punishment in preventing crimes (as a part of
which pre-existing and reliable information
should be provided), instead of basing arguments
on ill-informed surveys of public opinion,
managed by an over-paternalistic Government;
c. international human rights norms
These recommendations are even more pressing given
that Japan will soon introduce a lay-judges system.
Such a system should be suspended until balanced
and efficient conditions have been assured.
20. Implement the recommendations issued by
the United Nations Council on Human Rights in the
framework of the Universal Periodic Review and the
recommendations of the United Nations Committee
Against Torture and Human Rights Committee.
21. Sign and ratify the Second Optional Protocol
to the International Covenant on Civil and Political
Rights, aiming at the abolition of the death penalty.
B. To the Council of Europe and to the
European Union
1. To the Council of Europe, considering that
Japan has not responded to the Council’s requests
over several years, to act on its threat of suspension.
Where the suspension is not performed, the Council
will be severely discredited.
2. To include systematically the question of
the death penalty in their dialogue with Japan,
and at all levels (including meetings of the Troika
and of the Council and of the EU Commission with
their counterparts, meetings between European
Parliamentarians or members of the Parliamentary
Assembly of the Council of Europe with their
Japanese counterparts, etc), based on the European
Union’s Guidelines on the death penalty of 1998.
3. Support, while recognising Japan’s
improvements in other human rights fields, initiatives
taken in Japan that aim to educate and raise
awareness among the legal profession, the media
and the public on international human rights norms,
international criminal law and on the proven inability
of the death penalty to dissuade the commission of
crimes.
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Annex 1: Persons met by the mission
1. Ministry of Justice
-Satoshi TOMIYAMA, Director of the Penitentiary Division
-Norio SAEKI, Assistant Director of the Penitentiary Division
-Shin KUKIMOTO, Office of Criminal Affairs, Division of General Affairs, Director of the Research and Planning
office
- Yasushi IIJIMA
- Daisuke KATSURA
2. Community actors
- Amnesty International Japan, Mariko FUJITA (member of the executive bureau) ; Ryosuke MATSUURA
(campaign officer abolition of the death penalty), Ryo KACHI.
- Center for Prisoner’s Rights (CPR), Emi AKIYAMA, Yoshiaki NAKAMOTO
- Soba no Kai : Jin NAGAI. Hidefusa SEKI
- Masaharu HARADA, President of Ocean
- Forum 90 : Taku FUKADA, Naoko SHIMAYA, Akiko TAKADA
-Hidako HAKAMADA, sister of Monsieur Hakamada, condemned to death
3. Lawyers
- Kazuhiro YAEGASHI
- Katsuhiko NISHIJIMA (a lawyer representing Hakamada)
-Yuichi KAIDO, Vice-President of CPR
-Yoshikuni NOGUCHI, (Former Official of Tokyo Detention Center)
-Takahiro YUYAMA, JFBA
-Kei SHINYA, (Member of the JFBA Moratorium Implementation Committee)
-Maiko TAGUSARI, JFBA
-Mitsuhiro MURAKAMI (Nagoya Bar, Okunishi’s lawyer)
-Mizaki TORII, staff of JFBA
-Kiyoshi HIRAMATSU (Nagoya Bar, Okunishi’s lawyer)
-Takeshige MURATA (Nagoya Bar, Okunishi’s lawyer)
4. Professors
-Osamu NIIKURA, Professor at Aoyama Gakuin University, Tokyo
5. Diplomats
-Christophe PENOT, Councillor Minister
-Emmanuel BESNIER, First Secretary
-Pauline CARMONA, Political Adviser
FIDH - The Death Penalty in Japan: The Law of Silence / 51FIDH - The Death Penalty in Japan: The Law of Silence / 51
6. Detention personnel at the Tokyo and Nagoya prisons
Tokyo :
ISHIHARA Junichi (Warden)
YOKOYAMA Kazuhiro
TOMINAGA Hisayoshi
ISHIHARA Junichi
Nagoya :
SHIMADA Yoshio (warden)
YAMAZAKI Ikuo (general affairs)
MAEDA Toshiaki (deputy)
7. Parliamentarians
-Katsuei HIRASAWA, House of Representatives, Liberal Democratic Party
-Mizuho FUKUSHIMA, PSD (Social Democratic Party)
-Nobuto HOSAKA, PSD
8. Journalists
-Susumu YAMAGUCHI (Asahi Shimbun)
-Miako ICHIKAWA (Asahi Shimbun)
-Fumio TANAKA (Yomiuri Shimbun)
9. Religious representatives
Rev. Kitani HIDEFUMI, National Christian Council in Japan
Families of the condemned and judges met by the mission requested that their names not be cited
in this report.
FIDH - The Death Penalty in Japan: The Law of Silence / 52FIDH - The Death Penalty in Japan: The Law of Silence / 52
Annex 2: References
Guide to Tokyo Detention House
Japan Federation of Bar Association, November 22, 2002, “Recommendations on the Capital Punishment System”
Japan Federation of Bar Association, October, 2006, “Information for Prison Inmates” (New Version Corresponding
to the Newly Enacted Law Concerning the Treatment of Sentenced Inmates), third edition.
The Japan Times, February 9, 2007, “Lawyer to sue after prison bars meeting before inmate is executed”.
The Japan Times, March 26, 2008, “40-year death-row inmate’s retrial nixed”.
The Japan Times, May 9, 2008, “On death row and a cause celebre”.
近藤昭二，August 1, 2008, 《誰も知らない「死刑」の裏側》。（KONDO Shoji, August 1, 2008, “The Other Side
of the Death Penalty that Nobody Knows”）
JFBA, Japan’s “substitute Prison” shocks the world, April 2008.
Another Japan is possible (ed. J Chan), Stanford University press, 2008.
Nagai Jin, “The Death Penalty –the Current Status in Japan. Gratuitous appeals to “Japanese Culture””, Japonesia
Review, n° 4 2007-08, p. 68 et s.
NIIKURA Osamu, “L’expérience de l’Europe face à la question de l’abolition de la peine de mort”, Conférence
prononcée le 26 octobre 2006 à la Maison franco-japonaise, reprise en japonais dans NICHIFUTSU BUNKA, n° 75,
mars 2008, p. 1 et s.
Film entitled “I just didn’t do it”, by Soredemo boku wa yattenai, produced by JFBA
FIDH - The Death Penalty in Japan: The Law of Silence / 53FIDH - The Death Penalty in Japan: The Law of Silence / 53
Annex 3: Persons condemned to death since 1973
Source: http://www.geocities.jp/waramoon2000/sikkou1993.html
死刑被執行者一覧（９３年３月以来）
基本的に共犯は同日に執行される。
＊印は共犯
Execution
date
NameAgeDetention
Center
DateofcrimecrimeNo.of
victim
DecisionofDis-
trictcourt
DecisionofHigh
Court
Decisionof
Supreme
Court
Notes
1993.3.26Seikichi
KONDO
Shujiro
TATSUKAWA
Tetsuo
KAWANAKA
55
62
48
Sendai
Osaka
Osaka
1970.7-1971.5
1971.1-1972.7
1975.4-1977.8
Murderonthe
occasionof
robbery
Murder
Murderonthe
occasionof
robbery
2
2
3
1974.3.29
ShirakawaBranch,
FukushimaDistrict
CourtSentenceof
Death
1976.2.18
Mastuyama
SentenceofDeath
1980.9.13Kobe
SentenceofDeath
1977.6.28
Sendai
Appealdismissed
1979.12.18
Takamatsu
Appealdismissed
1982.5.26
Osaka
Appealdismissed
1980.4.25
Appeal
dismissed
1981.6.26
Appeal
dismissed
1984.9.13
Appeal
dismissed
1993.11.26Tadao
KOJIMA
YukioSEKI
Hideao
DEGUCHI
Toru
SAKAGUCHI
61
70
57
Sapporo
Tokyo
Osaka
1974.8.7
1977.12.3
1974.7-10
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
Murder
3
1
2
1975.9.17
KushiroSentence
ofDeath
1979.5.17
TokyoSentence
ofDeath
1978.2.23
OsakaSentence
ofDeath
1977.8.23
Appealdismissed
1982.9.1
Tokyo
Appealdismissed
1980.11.28
Osaka
Appealdismissed
1981.3.19
Appeal
dismissed
Noappeal
tothe
Supreme
Court
1984.4.27
Appeal
dismissed
formername
‘SAITO’
Withprevious
Convictionof
Lifeimprison-
ment
FIDH - The Death Penalty in Japan: The Law of Silence / 54FIDH - The Death Penalty in Japan: The Law of Silence / 54
Execution
date
NameAgeDetention
Center
DateofcrimecrimeNo.of
victim
DecisionofDis-
trictcourt
DecisionofHigh
Court
Decisionof
Supreme
Court
Notes
1994.12.1Yukio
AJIMA
Kazuzo
SASAKI
44
66
Tokyo
Sendai
1977.4.16
1984.9.9
Murder
Murderonthe
occasionof
robbery
3
2
1978.3.8
Maebashi
SentenceofDeath
1985.6.17
Aomori
SentenceofDeath
1980.2.20
Tokyo
Appealdismissed
NoAppealtothe
High
Court
1985.4.26
Appeal
dismissed
Formername
‘KOYAMA’
1995.5.26Eiji
FUJIOKA
Fusao
SUDA
Shigeho
TANAKA
54
70
Osaka
Tokyo
Tokyo
1978.11-12
1986.5.9
1976.10.16
Murderonthe
occasionof
robbery
Murder
Murderonthe
occasionof
robbery
2
1
1
1983.4.14
Tokushima
SentenceofDeath
1986.12.22
Tokyo
SentenceofDeath
1977.11.18
HachiojiBranch,
Tokyo
SentenceofDeath
NoAppealtothe
HighCourt
Appeal
withdrawn
1981.7.7
Tokyo
Appealdismissed
1987.10.23
Appeal
dismissed
Formername
‘KOYAKE’
1995.12.21Shuji
KIMURA
Naoto
HIRATA
Tokujiro
SHINOHARA
45
63
68
Nagoya
Fukuoka
Tokyo
1980.12.2
1979.3.28-5.15
1981.10-82.7
Murder
Murderonthe
occasionof
robbery
Murder
1
2
2
1982.3.23
Nagoya
SentenceofDeath
1980.10.2
Kumamoto
SentenceofDeath
1983.12.26
Maebashi
SentenceofDeath
1983.1.26
Nagoya
Appealdismissed
1982.4.27
Fukuoka
Appealdismissed
1985.1.17
Tokyo
Appealdismissed
1987.7.9
Appeal
dismissed
1987.12.18
Appeal
dismissed
1988.5.20
Appeal
dismissed
Withprevious
Convictionof
Lifeimprison-
ment
FIDH - The Death Penalty in Japan: The Law of Silence / 55FIDH - The Death Penalty in Japan: The Law of Silence / 55
Execution
date
NameAgeDetention
Center
DateofcrimecrimeNo.of
victim
DecisionofDis-
trictcourt
DecisionofHigh
Court
Decisionof
Supreme
Court
Notes
1996.7.11Yoshiaki
SUGIMOTO
Kazumi
YOKOYAMA
Mikio
ISHIDA
49
43
48
Fukuoka
Tokyo
1979.11.4
1981.7.6
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
1
2
1982.3.16
KokuraBranch,
Fukuoka
SentenceofDeath
1982.12.7
Tokyo
SentenceofDeath
1984.3.14
Fukuoka
Appealdismissed
1984.3.15
Appealdismissed
1988.4.15
Appeal
dismissed
1988.7.1
Appeal
dismissed
1996.12.20Yoshihito
IMAI
Mitsunari
HIRATA
Satoru
NOGUCHI
50
Tokyo
Tokyo
1983.1.29
1978.5-6
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
3
2
1984.6.5
Tokyo
SentenceofDeath
1980.1.18
Tokyo
SentenceofDeath
1985.11.29
Tokyo
Appealdismissed
1982.1.21
Appealdismissed
1988.10.27
Appeal
Withdrawn
1988.10.22
Appeal
withdrawn
1990.2.1
Appeal
dismissed
FIDH - The Death Penalty in Japan: The Law of Silence / 56FIDH - The Death Penalty in Japan: The Law of Silence / 56
Execution
date
NameAgeDetention
Center
DateofcrimecrimeNo.of
victim
DecisionofDis-
trictcourt
DecisionofHigh
Court
Decisionof
Supreme
Court
Notes
1997.8.1Nobuko
HIDAKA
Yasumasa
HIDAKA
Hideki
KANDA
Norio
NAGAYAMA
43
48
Sapporo
Tokyo
Tokyo
1984.5.5
1985.3.8
1968.10-11
Murder
Murder
Murderonthe
occasionof
robbery
6
3
4
1987.3.9
Sapporo
SentenceofDeath
1986.5.20
Urawa
SentenceofDeath
1979.7.10
Tokyo
SentenceofDeath
1988.10.11
Appealwi-
thdrawn
1988.10.13
Appealwi-
thdrawn
1986.12.22
Tokyo
Appealdismissed
1981.8.21
TokyoLife
imprisonment
1987.3.18
Sentenceof
Death
1989.11.20
Appeal
dismissed
1983.7.8
Reversed
andre-
ferredback
toHigh
Court
1990.4.17
Appeal
dismissed
Wifeof
Yasumasa
Husbandof
Nobuko
19years
Oldatthetime
Ofcrime
1998.6.25Masahiro
MURATAKE
Yukihisa
TAKEYASU
Shinji
SHIMAZU
54
66
66
Fukuoka
Fukuoka
Tokyo
1978.3.21
1980.7.24
1983.1.16
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
3
1
1
1983.3.30
SaseboBranch,
Nagasaki
Lifeimprisonment
1981.7.14
KokuraBranch,
Fukuoka
SentenceofDeath
1984.1.23
Tokyo
SentenceofDeath
1985.10.18
Fukuoka
Sentenceof
death
1986.12.2
Fukuoka
Appealdismissed
1985.7.8
Tokyo
Appealdismissed
1990.4.27
Appeal
dismissed
1990.12.14
Appeal
dismissed
1991.2.5
Appeal
dismissed
Withprevious
Convictionof
Life
imprisonment
Withprevious
Convictionof
Life
imprisonment
FIDH - The Death Penalty in Japan: The Law of Silence / 57FIDH - The Death Penalty in Japan: The Law of Silence / 57
Execution
date
NameAgeDetention
Center
DateofcrimecrimeNo.of
victim
DecisionofDis-
trictcourt
DecisionofHigh
Court
Decisionof
Supreme
Court
Notes
1998.11.19Masamichi
IDA
Tatsuaki
NISHIO
Akira
TSUDA
56
61
59
Nagoya
Nagoya
Hiroshima
1979.11-83.12
1977.1.7
1984.2.13
Murder
Murder
Murder
3
1
1
1985.12.2
Nagoya
SentenceofDeath
1980.7.8
Nagoya
SentenceofDeath
1985.7.17
FukuyamaBranch,
Hiroshima
SentenceofDeath
1987.3.31
Nagoya
Appealdismissed
1981.9.10
Nagoya
Appealdismissed
1986.10.21
Hiroshima
Appealdismissed
Noappeal
tothe
Supreme
Court
1989.3.28
Appeal
dismissed
1991.6.11
Appeal
dismissed
Accomplice
OfToshihiko
HASEGAWA
1999.9.10Shinji
SATO
Katsutoshi
TAKADA
Tetsuyuki
MORIKAWA
62
61
69
Tokyo
Sendai
Fukuoka
1979.7.28
1990.5.2
1985.7.24
Murder
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
1
1
2
1981.3.16
Tokyo
Sentenceofdeath
1992.6.18
KoriyamaBranch,
Fukushima
SentenceofDeath
1986.8.5
Kumamoto
SentenceofDeath
1985.9.17
Tokyo
Appealdismissed
Noappealtothe
HighCourt
1987.6.22
Fukuoka
Appealdismissed
1992.2.18
Appeal
dismissed
1992.9.24
Appeal
dismissed
Withprevious
Convictionof
Lifeimprison-
ment
Withprevious
Convictionof
Lifeimprison-
ment
Withprevious
Convictionof
Lifeimprison-
ment
1999.12.17Teruo
ONO
Kazuo
SAGAWA
62
48
Fukuoka
Tokyo
1977.9.24
1981.4.4
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
1
2
1978.9.18
Nagasaki
SentenceofDeath
1982.3.30
Urawa
SentenceofDeath
1979.9.25
Fukuoka
Appealdismissed
1987.6.23
Tokyo
Appealdismissed
1981.6.16
Appeal
dismissed
1991.11.29
Appeal
dismissed
Withprevious
Convictionof
Murder
FIDH - The Death Penalty in Japan: The Law of Silence / 58FIDH - The Death Penalty in Japan: The Law of Silence / 58
Execution
date
NameAgeDetention
Center
DateofcrimecrimeNo.of
victim
DecisionofDis-
trictcourt
DecisionofHigh
Court
Decisionof
Supreme
Court
Notes
2000.11.30Kiyotaka
FUJIWARA
Takashi
MIYAWAKI
Kunikatsu
OISHI
52
57
55
Nagoya
Nagoya
Fukuoka
1972.9-82.11
1989.2.14
1982.5.16
Murderonthe
occasionof
robbery
Murder
Murder
8
3
3
1986.3.24
Nagoya
SentenceofDeath
1989.12.14
Gifu
SentenceofDeath
1987.3.12
Saga
SentenceofDeath
1988.5.19
Nagoya
Appealdismissed
1990.7.16
Nagoya
Appealdismissed
1989.10.24
Fukuoka
Appealdismissed
1994.1.17
Appeal
dismissed
1994.3.18
Appeal
withdrawn
1995.4.21
Appeal
dismissed
Formername
‘KATSUTA’
2001.12.27Toshihiko
HASEGAWA
Kojiro
ASAKURA
51
66
Nagoya
Tokyo
1979.11-84.4
1983.6.17
Murder
Murder
3
5
1985.12.2
Nagoya
SentenceofDeath
1985.12.20
Tokyo
SentenceofDeath
1987.3.31
Nagoya
Appealdismissed
1990.1.23
Tokyo
Appealdismissed
1993.9.21
Appeal
dismissed
1996.11.14
Appeal
dismissed
Formername
‘TAKEUCHI’
Accompliceof
Masamichi
IDA
2002.9.18Tatsuya
HARUTA
Yoshiteru
HAMADA
36Fukuoka
Nagoya
1987.9.14-25
1994.6.3
Murder
Murder
1
3
1988.2.26
Kumamoto
SentenceofDeath
1998.5.15
Gifu
SentenceofDeath
1991.3.26
Fukuoka
Appealdismissed
1998.6.3
Appealwi-
thdrawn
1998.4.23
Appeal
dismissed
Formername
‘TAMOTO’
Withprevious
Convictionof
Murder
FIDH - The Death Penalty in Japan: The Law of Silence / 59FIDH - The Death Penalty in Japan: The Law of Silence / 59
Execution
date
NameAgeDetention
Center
DateofcrimecrimeNo.of
victim
DecisionofDis-
trictcourt
DecisionofHigh
Court
Decisionof
Supreme
Court
Notes
2003.9.12Shinji
MUKAI
42Osaka1985.11-12Murderonthe
occasionof
robbery
31988.2.26
Kobe
SentenceofDeath
1990.10.3
Osaka
Appealdismissed
1996.12.17
Appeal
dismissed
Formername
‘MAEHARA’
2004.9.14Sueo
SHIMAZAKI
Mamoru
YOSHIOKA
59
40
Fukuoka
Osaka
1988.3.13-5.17
2001.6.8
Murder
Murder
3
8
1992.11.30
Kumamoto
Lifeimprisonment
2003.8.28
Osaka
SentenceofDeath
1995.3.16
FukuokaSen-
tenceofdeath
2003.9.26
Appealwi-
thdrawn
1999.3.9
Appeal
dismissed
Formername
‘TAKUMA’
2005.9.16Susumu
KITAGAWA
58Osaka1983.8-89.2Murderonthe
occasionof
robbery
21994.2.23
Kochi
SentenceofDeath
1995.3.30
Takamatsu
Appealdismissed
2000.2.4
Appeal
dismissed
2006.12.25Yoshimitsu
AKIYAMA
Yoshio
FUJINAMI
Michio
FUKUOKA
Hiroaki
HIDAKA
77
75
64
44
Tokyo
Tokyo
Osaka
Hiroshima
1975.8.25
1981.3.29
1978.12.8-
81.1.30
1996.4.19-9.14
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
Murder
Murderonthe
occasionof
robbery
1
2
3
4
1976.12.16
Tokyo
SentenceofDeath
1982.2.19
Utsunomiya
SentenceofDeath
1988.3.9
Kochi
SentenceofDeath
2000.2.9
Hiroshima
SentenceofDeath
1980.3.27
Tokyo
Appealdismissed
1987.11.11
Tokyo
Appealdismissed
1994.3.8
Takamatsu
Appealdismissed
Noappealtothe
HighCourt
1987.7.17
Appeal
dismissed
1993.9.9
Appeal
dismissed
1999.6.25
Appeal
dismissed
FIDH - The Death Penalty in Japan: The Law of Silence / 60FIDH - The Death Penalty in Japan: The Law of Silence / 60
Execution
date
NameAgeDetention
Center
DateofcrimecrimeNo.of
victim
DecisionofDis-
trictcourt
DecisionofHigh
Court
Decisionof
Supreme
Court
Notes
2007.4.27Kosaku
NADA
Yoshikatsu
ODA
Masahiro
TANAKA
56
42
Osaka
Fukuoka
Tokyo
1983.1.19
1990.12.15
1984.11.15-
91.3.8
Murderonthe
occasionof
robbery
Murder
Murderonthe
occasionof
robbery
2
2
4
1984.7.10
Kobe
SentenceofDeath
2000.3.15
Fukuoka
SentenceofDeath
1994.1.27
Yokohama
SentenceofDeath
1987.1.23
Osaka
Appealdismissed
2000.3.30
Appealwi-
thdrawn
1995.12.20
Tokyo
Appealdismissed
1992.9.29
Appeal
dismissed
2000.9.8
Appeal
dismissed
Formername
‘MIYASHITA’
2007.8.23Hifumi
TAKEZAWA
Kozo
SEGAWA
Yoshio
IWAMOTO
60
63
Tokyo
Nagoya
Tokyo
1990.9.13-
93.7.28
1991.5.7
1996.6.10-
99.7.8
Murder
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
3
2
2
1998.3.24
Utsunomiya
SentenceofDeath
1993.7.15
Toyama
SentenceofDeath
2001.2.1
Tokyo
SentenceofDeath
2000.12.11
Tokyo
Appealdismissed
1997.3.11
Kanazawa
Branch,Nagoya
Appealdismissed
Noappealtothe
HighCourt
Noappeal
tothe
Supreme
Court
2001.1.30
Appeal
dismissed
FIDH - The Death Penalty in Japan: The Law of Silence / 61FIDH - The Death Penalty in Japan: The Law of Silence / 61
Execution
date
NameAgeDetention
Center
DateofcrimecrimeNo.of
victim
DecisionofDis-
trictcourt
DecisionofHigh
Court
Decisionof
Supreme
Court
Notes
2007.12.7Noboru
IKEMOTO
Hiroki
FUKAWA
Seiha
FUJIMA
74
42
47
Osaka
Tokyo
Tokyo
1986.6.3
1999.4.19
1981.10.6-
82.6.5
Murder
Murderonthe
occasionof
robbery
Murder
3
2
5
1988.3.22
Tokushima
Lifeimprisonment
2001.3.21
Tokyo
SentenceofDeath
1988.3.10
Yokohama
SentenceofDeath
1989.11.28
Takamatsu
Sentenceof
death
2001.12.19
Tokyo
Appealdismissed
2000.1.24
Tokyo
Appealdismissed
1996.3.4
Appeal
dismissed
2003.1.5
Appeal
withdrawn
2004.6.15
Appeal
dismissed
2008.2.1Masahiko
MATSUBARA
Keishi
NAGO
Takashi
MOCHIDA
63
65
Osaka
Fukuoka
Tokyo
1988.4.18-6.1
2002.8.16
1997.4.18
Murderonthe
occasionof
robbery
Murder
Murder
2
2
1
1990.5.22
Tokushima
SentenceofDeath
2004.6.18
Kagoshima
SentenceofDeath
1999.5.27
Tokyo
Lifeimprisonment
1992.1.23
Takamatsu
Appealdismissed
Appeal
withdrawn
2000.2.28
Tokyo
Sentenceof
death
1997.4.28
Appeal
dismissed
2004.10.13
Appeal
dismissed
Withprevious
Convictionof
Murder(10
years
Imprisonment)
FIDH - The Death Penalty in Japan: The Law of Silence / 62FIDH - The Death Penalty in Japan: The Law of Silence / 62
Execution
date
NameAgeDetention
Center
DateofcrimecrimeNo.of
victim
DecisionofDis-
trictcourt
DecisionofHigh
Court
Decisionof
Supreme
Court
Notes
2008.4.10Katsuyoshi
NAKAMOTO
Masaharu
NAKAMURA
Masato
SAKAMOTO
Kaoru
AKINAGA
64
61
41
61
Osaka
Osaka
Tokyo
Tokyo
1982.5.20
1989.10.10-
12.26
2002.7.19
1989.10.1-10.4
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
Murder
Murder
2
2
1
2
1985.5.16
SakaiBranch,Osaka
SentenceofDeath
1995.5.19
OtsuSentenceof
Death
2003.10.9
Maebashi
Lifeimprisonment
1999.3.11
Tokyo
Lifeimprisonment
1991.10.27
OsakaAppeal
dismissed
1999.12.22
OsakaAppeal
dismissed
2004.10.29
Sentenceof
death
2001.5.17
Tokyo
Sentenceof
death
1997.1.28
Appeal
dismissed
2004.9.9
Appeal
dismissed
Noappeal
tothe
Supreme
Court
2005.3.3
Appeal
dismissed
Formername
‘OKASHITA’
2008.6.17Yoshio
YAMAZAKI
Shinji
MUTSUDA
Tsutomu
MIYAZAKI
73
37
45
Osaka
Tokyo
Tokyo
1985.11.12-
90.3.24
1995.12.21
1988.8.22-
89.6.6
Murder
Murderonthe
occasionof
robbery
Murder
2
2
4
1997.2.18
Takamatsu
Lifeimprisonment
1998.6.5
Tokyo
SentenceofDeath
1997.4.14
Tokyo
SentenceofDeath
2000.10.26
Takamatsu
Sentenceof
death
2001.9.11
Tokyo
Appealdismissed
2001.6.28
Tokyo
Appealdismissed
2005.1.25
Appeal
dismissed
2005.10.17
Appeal
dismissed
2006.1.17
Appeal
dismissed
FIDH - The Death Penalty in Japan: The Law of Silence / 63FIDH - The Death Penalty in Japan: The Law of Silence / 63
Execution
date
NameAgeDetention
Center
DateofcrimecrimeNo.of
victim
DecisionofDis-
trictcourt
DecisionofHigh
Court
Decisionof
Supreme
Court
Notes
2008.9.11Yoshiyuki
MANTANI
Mineteru
YAMAMOTO
Isamu
HIRANO
68
61
Osaka
Osaka
Tokyo
1988.1.15
2004.7.22
1994.12.19
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
Murderonthe
occasionof
robbery
1
2
2
1991.2.7
Osaka
2006.3.20
Kobe
SentenceofDeath
2000.2.17
Utsunomiya
SentenceofDeath
1997.4.10
Osaka
Appealdismissed
Noappealtothe
HighCourt
2002.7.4
Tokyo
Appealdismissed
2001.12.6
Appeal
dismissed
2006.9.1
Appeal
dismissed
Withprevious
Convictionof
Lifeimprison-
ment
Withprevious
Convictionof
Murder
FIDH - The Death Penalty in Japan: The Law of Silence / 64FIDH - The Death Penalty in Japan: The Law of Silence / 64
Annex 4:
Recommendations
issued by FIDH in
its May 2003 report
entitled “The Death
Penalty in Japan:
A Practice Unworthy
of a Democracy”
A. to the Japanese government and
legislator
1 - To adopt a moratorium on executions of the capital
punishment, with as final aim its abolition. And at the
very least, to reduce the number of crimes punished by
the death penalty in order to ensure that it is applied
only for the most serious crimes. Such a legislative
modification should be applied immediately to the
persons who have been condemned on the base of that
modified legislation (in conformity with Principle 2 of the
UN Safeguards).
2 - To reform the system of policy custody in police
stations by drastically reducing the period of time
suspects are held; by putting the system under the
effective control of the judicial authority; and by
fully ensuring true exercise of rights of the defence.
Confessions under police custody are the cause of many
miscarriages of justice.
3 -To institute a mandatory appeal procedure for all
death sentence rulings and to guarantee in the legislation
that executions cannot be carried out while appeals for
retrials and requests of pardon are pending.
4 - To put an end to the secrecy surrounding death row
inmates’ living conditions in Japanese detention houses
and allow Diet members, journalists and representatives
from international organizations to visit them, observe
their living conditions and collect grievances so as to
inform the public opinion in Japan and internationally.
Properly informed, public opinion would probably be in
favour of a moratorium on executions, which would be a
first step towards the abolition of the death penalty.
5 - To ensure that persons who risk to be condemned to
the death penalty from the moment of the arrest and
at any stage of the procedure, even after the sentence
have become definitive, have access to a legal counsel,
in full respect of the confidentiality of the lawyer-client
relationship.
6 - Organise campaigns of sensitisation for the public
on international human rights standards and on the
limited efficacy of the death penalty in deterring crime,
rather than invoking questionable opinion «polls» as the
basis for retention of the death penalty. This has been
repeatedly called for by domestic human rights NGOs,
and recommended by the United Nations Human Rights
Committee.
7 - Increase and improve training for judges, prosecutors
and law enforcement officers in international human
rights law.
8 - Report to the UN Human Rights Committee on
specific steps and measures taken to address its
recommendations in past reviews of the government
of Japan’s State Parties reports; submit to the UN
Committee Against Torture its initial report under the
Convention, due since July 2000.
9 - Ratify the Second Optional Protocol to the ICCPR
aiming at the universal abolition of the death penalty.
10 - Ratify the Statute of the International Criminal Court
B. to the Council of Europe and the
European Union
1 - To the Council of Europe, considering that over
the last 2 years, Japan has not reacted effectively
to the calls of the Council of Europe, to take into
FIDH - The Death Penalty in Japan: The Law of Silence / 65FIDH - The Death Penalty in Japan: The Law of Silence / 65
consideration the suspension of the observer status
for a renewable period of 1 year, and to propose the
development, in Japan, of specific programs aiming
at promoting abolition.
2. To systematically include the issue of death
penalty in their dialogue with Japan, at all levels
(meetings of the troika of the EU Council and the
Commission with their counterparts, meeting with
Members of the European Parliament or members of
the Parliamentary Assembly of the Council of Europe
and their Japanese counterparts, etc.)
3 - To support initiatives in Japan which aim at
training and sensitizing legal practitioners and the
public to international human rights standards,
to international criminal law, to the lack of
demonstrated efficiency of the death penalty.
FIDH - The Death Penalty in Japan: The Law of Silence / 66
FIDH - The Death Penalty in Japan: The Law of Silence / 67
FIDH
human rights organisations
on
represents 155
continents
keep your eyes open
FIDH
17, passage de la Main d’Or - 75011 Paris - France
CCP Paris : 76 76 Z
Tel: (33-1) 43 55 25 18 / Fax: (33-1) 43 55 18 80
Site internet: http://www.fidh.org
Establishing the facts:
investigative and trial observation missions
Through activities ranging from sending trial observers to organising international investigative missions, FIDH has
developed, rigorous and impartial procedures to establish facts and responsibility. Experts sent to the field give
their time to FIDH on a voluntary basis.
FIDH has conducted more than 1 500 missions in over 100 countries in the past 25 years. These activities reinforce
FIDH’s alert and advocacy campaigns.
Supporting civil society:
training and exchange
FIDH organises numerous activities in partnership with its member organisations, in the countries in which they
are based. The core aim is to strengthen the influence and capacity of human rights activists to boost changes at
the local level.
permanent lobbying before intergovernmental bodies
FIDH supports its member organisations and local partners in their efforts before intergovernmental organisations.
FIDH alerts international bodies to violations of human rights and refers individual cases to them. FIDH also takes
part inthe development of international legal instruments.
Informing and reporting:
mobilising public opinion
FIDH informs and mobilises public opinion. Press releases, press conferences, open letters to authorities, mission
reports, urgent appeals, petitions, campaigns, website… FIDH makes full use of all means of communication to
raise awareness of human rights violations.
5
Director of the publication: Souhayr Belhassen
Editor: Antoine Bernard
Authors: Florence Bellivier, Dan Van Raemdonck and Jiazhen Wu
Coordination: Isabelle Brachet
PAO: Céline Ballereau
Imprimerie de la FIDH - Dépôt légal octobre 2008/505a - Fichier informatique conforme à la loi du 6 janvier 1978 - (Déclaration N° 330 675)
Mobilising the international community:
FIDH
human rights organisations
on
represents 155
continents5
Article 3: Everyone has the right to life, liberty and security
of person. Article 4: No one shall be held in slavery or servitude; slavery and the slave trade shall
be prohibited in all their forms. Article 5: No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. Article 6: Everyone has the right to recognition everywhere as a
person before the law. Article 7: All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any
incitement to such discrimination. Article 8:
Everyone has the right to an effective remedy
• FIDH takes action for the protection of victims of human rights violations,
for the prevention of violations and to bring perpetrators to justice.
• A broad mandate
FIDH works for the respect of all the rights set out in the Universal
Declaration of Human Rights: civil and political rights, as well as
economic, social and cultural rights.
• An universal movement
FIDH was established in 1922, and today unites 155 member organisations in
more than 100 countries around the world. FIDH coordinates and supports
their activities and provides them with a voice at the international level.
• An independent organisation
Like its member organisations, FIDH is not linked to any party or religion and
is independent of all governments.
www.fidh.org
About FIDH