EU-Japan relations and human rights

1. EU-Japan relations and human rights Paul Bacon PH201

2. Council of Ministers: EU Strategic Framework and Action Plan on Human Rights and Democracy. • A June 2012 Council of Ministers document called for the mainstreaming of human rights in all EU external policies. • Outcome item 2 focuses on ‘Genuine partnership with civil society, including at the local level’ (to be discussed in Session 3 today). • Outcome item 16 refers to the ‘abolition of the death penalty’. • Outcome item 26 refers to the ‘administration of justice’. • I want to say a little more about these two below.

3. European Parliament Briefing Paper: Enhancing EU Action on the Death penalty in Asia • An October 2012 Parliament Briefing Paper called for more nuanced country-specific death penalty strategies. • It also identified a comprehensive, 7-stage framework within which to encourage states at different stages in the journey towards abolition (pp.43-44). • The framework was very impressive, but the suggestions towards country-specific strategies were (necessarily) a little brief and thin. • Below, I sketch what a specific country-strategy for Japan might look like, separating out items relating to the death penalty, and items relating to the administration of justice. • I am therefore trying to build on elements in both of the reports.

4. Developments on Human Rights in Asia • Of 24 Asian countries discussed in the Parliament report: • Five have abolished the DP: Bhutan, Cambodia, Mongolia, Nepal, Philippines. • Six are abolitionist in practice: Brunei, Burma, Laos, Maldives, South Korea, Sri Lanka. • Four have a significant downward trend in executions: China, Malaysia, Pakistan and Singapore. • Nine have experienced little or no progress: Afghanistan, Bangladesh, India, Indonesia, Japan, North Korea, Taiwan, Thailand, Vietnam.

5. Developments on Human Rights in Japan 1 • The Parliament report identifies Japan’s situation as having fluctuated markedly in recent years. • It implies that there is little chance of an official moratorium or abolition of the DP. I agree. • The Democratic Party of Japan has been in power for three years, and is generally less supportive of the DP. (Only 2 executions in 2.5 years, until March this year) • The general election on December 16th was won by the Liberal Democratic Party, which is generally highly supportive of the DP, so executions are likely to continue. • There were two periods of de facto moratorium when the DPJ was in power, the second of which lasted 20 months. This year, however, there have been 7 executions. • Roughly 85% of the Japanese public supports the DP.

6. Developments on Human Rights in Japan 2 • This makes it politically costly to consider abolition, and offers an easy excuse to continue with executions. • The DPJ was prepared to uphold a de facto moratorium during the middle of its term, but came under strong pressure from the LDP and the public in recent months. • The de facto moratorium was the high-water mark of what is currently achievable in Japan on the DP, especially now that the LDP is in power. • So, a more differentiated human rights strategy is necessary for Japan. • This approach should still include the DP, but should not focus exclusively or excessively on the DP. • There are other human rights issues in Japan which are arguably more important than the DP, on which there is greater possibility of movement by the Japanese government. • Broadly, I am referring to due process and criminal justice issues, which I have separated out horizontally from death penalty issues in slides 8-11. • I have also categorized death penalty and due process issues vertically, listing them in descending order of priority (starting with the most important).

7. Number of executions in Japan between 1998 and 2012

8. Death penalty-related recommendations 1Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) • Abolition of the death penalty • Official moratorium on death penalty. • Unofficial moratorium on death penalty. • Significant reduction in number of executions • Reduction in the number of executions • Persons at an advanced age or with mental disabilities not to be executed. • Minors not to be executed. • Pregnant women or young mothers not to be executed. • Death penalty strictly limited to the most serious crimes. • Powers of pardon, commutation and reprieve to be genuinely available to those sentenced to death. • Mandatory system of review in capital cases. • Suspensive effect of requests for retrial or pardon in such cases.

9. Death penalty-related recommendations 2Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) • Strict confidentiality for all meetings between death row inmates and their lawyers concerning retrial. • Death row inmates treated more humanely. • Inmates on death row and their families to be given reasonable advance notice of the scheduled date and time of the execution, to prepare themselves for this event. • Ensure that solitary confinement remains an exceptional measure of limited duration. • Introduce a maximum time limit for solitary confinement. • Require prior physical and mental examination for inmates to be confined in protection cells. • Discontinue practice of segregating certain inmates in “accommodating blocks” without clearly defined criteria or possibilities of appeal. • Inform public about the desirability of abolition.

10. Due process-related recommendations 1Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) • Abolish substitute detention system (23 days, 72 hours). • Right of confidential access to legal aid from the moment of arrest and irrespective of the nature of their alleged crime, for all suspects. • Right of confidential access to a lawyer during the interrogation process for all suspects. • Right of all suspects to have counsel present during interrogations, to prevent false confessions and ensure the rights of suspects • Strict time limits for interrogation of suspects, and sanctions for non-compliance. • Systematic use of video recording devices for entire duration of interrogations. • Role of police during criminal investigations is to collect evidence for the trial rather than establishing the truth. • Silence of suspects not considered inculpatory.

11. Due process-related recommendations 2Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) • Courts to rely on modern scientific evidence rather than confessions made during police interrogations. • Right of confidential access to all police records related to their case for all suspects. • Right of confidential access to medical treatment for all suspects. • Pre-indictment bail system to be introduced. • The Penal Institution and Detention Facilities Visiting Committees are adequately equipped and have full access to all relevant information. • Members of above committees not appointed by management of penal institutions and police detention facilities. • The Review and Investigation Panel for Complaints from Inmates of Penal Institutions adequately staffed and its opinions binding on the Ministry of Justice. • Competence for reviewing complaints by detainees to be transferred from the Prefectural Public Safety Commissions to an independent body comprised of external experts.

12. General Recommendations • Country-specific specialist advisory committees composed of 8-10 members (civil society). • Region-wide expert committee of 8-10 members, to co-ordinate and review country strategies. • Re-booting of the Tokyo Human Rights Task Force (diplomatic grouping of some 10 EU member-states). • Adoption of the approach outlined above as the official strategy. • Publication of annual 10-15 page EU-sponsored country report (possibly confidential) • Public opinion polling on DP in Japan. • Possibility of deliberative polling exercises based on the death penalty/criminal justice. • Continued support for death penalty lobby groups such as the Federation of Bar Associations, the Diet Members League, and for relevant NGOs such as the Center for Prisoners’ Rights.