Human rights, the death penalty, and EU-Japan relations

1. Human rights, the death penalty, and EU-Japan relations Paul Bacon Waseda University Deputy Director, EUIJ Waseda PH201

2. The Transformative Power of Europe? 1 • The EU has a very strong self-image. The EU is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. • The EU requires potential members, and encourages its partners, to respect and uphold these principles. • Particularly with regard to EU enlargement, people have talked about the soft power and the transformative power of the EU. • Most people agree that the EU has successfully demonstrated these powers in its near abroad. • Through conditionality, the EU has transformed the domestic political, economic and social systems of European states who want to join the EU.

3. The Transformative Power of Europe? 2 • However, it is not clear whether European transformative power only works in the European region. • Does the EU have the power and attractiveness to spread its ideas beyond the European sphere, using techniques of conditionality? • There is a large literature on EU transformative power, but the focus has overwhelmingly been on the European region. • Little has been written about the EU’s relations with non-European states. • Does the EU have the soft power to influence the human rights policies of Japan and Korea? • More specifically, does the EU have the soft power to influence Japan’s policy on the death penalty?

4. Overview 1 • The EU tries to use transformative power, where possible, to promote democracy, human rights and the abolition of the death penalty around the world. • The EU Delegation in Japan has also dedicated much attention and some resources to human rights diplomacy in Japan. • The EU has achieved some success and momentum in raising awareness of the death penalty, and promoting the abolitionist case. • Whilst the number of executions has declined this year, however, it is simply too soon to say what the medium-term trend is. • The short-term decline has occurred for a number of reasons, including the fact that the DPJ has been in power, and increased pressure from the international community.

5. Overview 2 • It could be argued that there has been a significant reduction in the number of executions, that the number of executions will remain low in the future, and that, therefore, the EU’s human rights diplomacy in Japan has been a success. • Equally, it remains highly unlikely that Japan will abolish the death penalty in the near future. It is also unlikely that there will be a moratorium, official or otherwise. • Circumstances within Japan make it unlikely in the near future that any party would countenance moving against a policy that is said to have widespread public support. • The political costs of abolition in the current social and political climate are prohibitively high, and the prospects for a cross-party consensus not strong. • It could be argued that excessive resources have been allocated to attempting to persuade Japan to place an unofficial moratorium on executions.

6. Overview 3 • It could also be argued, therefore, that the EU’s human rights diplomacy has not achieved its desired objective, and that, accordingly, the EU’s transformative power is weak in the Japanese context. • Although the author supports the abolition of the death penalty, it is important to note that there is a reasonable case that can be made in defence of this punishment. • There are, however, other human rights problems in Japan which are arguably at least as important as the death penalty, and for which there are no reasonable justifications. • The presentation cites the Concluding Observations of the UN Human Rights Committee on Japan’s Fifth Periodic Report under the International Covenant on Civil and Political Rights to support this claim. • For each article of the Concluding Observations, subjects of concern and recommendations are listed. • I have produced a composite list of recommendations, based on the UN report, the EU Guidelines for the Death Penalty, and the guidelines on the death penalty from the European Instrument for Democracy and Human Rights.

7. Overview 4 • This UN document has identified problems that exist with regard to due process in the Japanese criminal justice system, and addresses issues such as the length of time spent in custody, the recording of interviews, and access to legal counsel for suspects throughout the interview process. • These issues are not as high profile and as potentially politically costly to any incumbent party, or to any possible cross-party consensus. • Movement on these issues, although also not easy, is therefore less difficult than movement on the issue of the death penalty. • The criminal justice process should therefore also be a principal target of the EU’s human rights diplomacy in Japan. • Although the issues of the death penalty and due process are often conflated and clearly overlap, they are also separable. • The EU should therefore consider complementary or alternative ways to effect conditionality and gain transformative power.

8. Capital punishment in Japan • Capital punishment is legal in Japan. • Between 1946 and 1993, Japanese courts sentenced 766 people to death, 608 of whom were executed. • The death penalty is ordinarily imposed in cases of multiple murders involving aggravating factors. • In Japan, the courts follow guidelines developed in the trial of Norio Nagayama, a 19 year old from a disadvantaged background, who committed four murders. • The supreme court of Japan, in imposing the death penalty, ruled that the death penalty may be imposed in consideration of the degree of criminal liability and balance of justice, based on a nine-point set of criteria. • Though technically not a precedent, the ‘Nagayama standard’ has been followed in all subsequent capital cases in Japan. • These guidelines were also used in the first case where lay judges were asked to pass judgment in a capital case and found the defendant guilty.

9. The Nagayama Standard • 1. Degree of viciousness • 2. Motive • 3. How the crime was committed; especially the manner in which the victim was killed. • 4. Outcome of the crime; especially the number of victims. • 5. Sentiments of the bereaved family members. • 6. Impact of the crime on Japanese society. • 7. Defendant's age (in Japan, someone is a minor until the age of 20). • 8. Defendant's previous criminal record. • 9. Degree of remorse shown by the defendant.

10. Conditions on death row • Those on death row are not classified as prisoners by the Japanese justice system, and the facilities they are held at are not referred to as prisons. • Inmates lack many of the rights afforded to other Japanese prisoners. • The nature of the regime they live under is largely up to the director of the Detention Center, but it is usually significantly harsher than normal Japanese prisons: • Inmates are held under solitary confinement and are forbidden from communicating with their fellows. • They are permitted two periods of exercise a week. • They are not allowed televisions and may only possess three books. • Prisoners are not allowed to exercise within their own cells. • Prison visits, both by family members and legal representatives, are infrequent and closely supervised.

11. Numbers • Executions are carried out by hanging in a death chamber within the Detention Center. • When a death order has been issued, the condemned prisoner is informed on the morning of his or her execution. • The prisoner‘s family and legal representatives are not informed until afterwards. • There are presently 126 people awaiting execution in Japan. • You can see the recent trend in the number of executions in the following slide. • After a comparative lull between 2000 and 2005, the number of executions rose significantly in the following three years. • The number of executions have declined again for the time being, but it is not easy to predict what will happen over the next couple of years.

13. Public opinion in Japan • The death penalty is broadly supported by the Japanese public. • In 34 polls taken between 1953 and 1999, support for the death penalty has never dropped below 50 percent. • A late 2009 Cabinet Office survey shows that a record 85.6 percent of Japanese favor maintaining the death penalty. • The percentage of those who said the death penalty is unavoidable was up 4.2 points from the previous survey in 2004. • Only 5.7 percent of respondents said it should be abolished for no matter what crime. The figure was down 0.3 point from six years ago. • Those who supported the death penalty said victims and their families would remain frustrated (54%) and heinous crimes would increase if the punishment was abolished (51.5%). • The survey, carried out from late November to early December, covered 3,000 people, and received valid responses from 1,944. The survey has been conducted every five years since 1994. • In 2008, the United Nations Human Rights Council recommended that Japan abolish the death penalty regardless of public opinion. • The government has maintained the punishment, citing public support.

14. The Chiba executions • On July 28th, 2010, Justice Minister Keiko Chiba, a lawyer-turned politician from the Democratic Party of Japan, authorized and witnessed the executions of two death row inmates. • She had been a member of the Diet Members League Against the Death Penalty, and the Amnesty Diet Members League until she assumed the post of Minister, and had been was widely and mistakenly expected to refuse to sign an execution warrant. • During her tenure Chiba had expressed her desire to initiate discussion on the issue of the death penalty, and had demonstrated a cautious stance. • However, Chiba had lost her seat in the Upper House election on July 11th, and would have lost her Cabinet seat in the impending reshuffle. • It is still not clear exactly why Chiba took the decision to authorize the executions.

15. New Initiatives? • At the press conference to announce the executions Chiba stated that she would establish a panel at the Ministry of Justice to study the death penalty, and would also allow the news media to visit the execution chamber. (This gesture was also criticized, in that it was only extended to members of the ‘kisha’ club). • Because of the pressure Chiba had been placed under by ministry officials, she announced the establishment of the panel only after the executions “as a responsibility of the Minister”. • The panel has been criticized for a number of reasons: • It meets privately, and not for open discussions, as ex-Minister Chiba had suggested. • Panel membership has been restricted to senior officials at the Ministry of Justice. • Finally, the panel agreed to only discuss only a limited number of issues. • The Democratic Party of Japan (DPJ) declared that it would review the death penalty and consider a moratorium during the 2009 election campaign, but nothing has been put into action. • The DPJ also announced its intention to establish a party working group on the death penalty, but the details of that working group have yet to be determined.

16. Saiban-in system • Beginning in 2009, Japan instituted a jury system called saiban-in. • Juries consisting of three legally-trained judges and six citizens chosen by lottery now decide criminal cases by majority vote. • Since 1943, verdicts had been decided by three-judge panels, leaving citizens with no voice in a system in which virtually all criminal trials end in a conviction. • The return to citizen participation represents a bold commitment to have ordinary Japanese take greater responsibility in running the country. • If a jury is sufficiently unhappy with the government‘s case or the government’s conduct, it can simply refuse to convict. • A majority not guilty vote by the jurors can proceed, but a majority guilty vote by the lay judges needs a corresponding vote from a minimum of one professional judge.

17. Saiban-in system • The new system faces many challenges. • According to surveys conducted by a sociologist, Hiroshi Fukurai, the prospect of jury service intimidates many Japanese. • 70 percent of Japanese don't want to be on juries. • Japanese are much more likely to fear retaliation from defendants than American jurors are. • They also have far less confidence than Americans do in their ability to judge fairly. • Some abolitionists believe that the new jury system will mean that Japanese have to become more educated about their own legal system, and that they will be more reluctant to impose the death penalty when they are more personally involved in the decision. • It is probably too early too pass judgment on this question. However, it is necessary to note two recent ‘firsts’. • On November 16th 2010, a jury trial in Yokohama sent a man to the gallows for a double murder, in the country's first death penalty ruling by jurors. • On November 25th 2010, Japanese jurors sentenced a teenager to hang for a double murder, the first death penalty given to a minor under the nation's newly-introduced jury system. • As of September 2011, eight people have now been sentenced to death by jury trial.

18. Japan’s official position on the DP • The Japanese government position on the death penalty is stated clearly on page 36 of the Fifth Periodic Report to the UN Human Rights Committee. • 130. The Government believes that whether to retain or abolish the death penalty should be determined individually by each country, taking into account the public sentiments, crime trends, criminal policies and other relevant factors. • As far as Japan is concerned, whether to retain or abolish the death penalty is an issue of particular importance which relates to the core of the criminal justice system and deserves careful examination from various perspectives, including that of the achievement of social justice, with sufficient attention being paid to public opinion. • In Japan, considering, inter alia, that the majority of the public believes the death penalty to be inevitable for extremely heinous and atrocious crimes (the latest survey was conducted in September 1999) and since such heinous crimes as murder and death on the occasion of robbery resulting in multiple deaths are still being committed, the Government’s view is that imposing the death penalty on those who have committed extremely heinous crimes and whose criminal responsibility is extremely grave cannot be avoided, and that abolishing the death penalty is not appropriate.

19. The EU and the death penalty • The EU considers the death penalty to be a cruel and inhuman punishment, which represents an unacceptable denial of human dignity and integrity. • In its efforts against the death penalty, the EU is actively supported by states from all regions of the world. • The EU uses all available means – diplomatic channels and raising public awareness - in working towards the goal of abolishing the death penalty throughout the world. In 2009, the EU issued statements on over 30 individual death penalty cases and carried out more than 30 demarches and other measures regarding individual cases. • EU High Representative for Foreign Affairs and Security Policy and Vice President of the European Commission Catherine Ashton said: "It is encouraging that the large majority of states have abolished the death penalty in law or practice. However, there is no room for complacency - every execution is one too many. This is why I have made our work on the abolition of the death penalty a personal priority."

20. Ashton statement on recent executions in Japan • I deeply regret the execution by hanging of Hidenori Ogata and Kazuo Shinozawa on 28 July 2010, and the fact that this marks the resumption of executions in Japan after one year during which none took place. The European Union is opposed to the use of capital punishment in all cases and under all circumstances and has consistently called for its universal abolition. The EU believes that the death penalty is cruel and inhuman and that its abolition is essential to protect human dignity. • Although I deeply regret these executions, I welcome the latest efforts by the Minister of Justice to foster public debate in Japan about the death penalty and her decision to set up a panel to study the issue. • Japan and the EU are close partners on a wide range of human rights concerns around the world. The EU has on a number of occasions called on the Japanese authorities for a moratorium on the application of the death penalty, pending its complete legal abolition. This would bring Japan into line with the worldwide trend away from the death penalty. More than two-thirds of countries around the world have formally abolished or ceased to apply the death penalty, as called for by the UN General Assembly.

21. Global Abolitionist Norm? • Ashton refers to a worldwide trend towards abolition: • In 2009, at least 5,679 executions were carried out, down from a minimum of 5,735 in 2008 and a minimum of 5,851 in 2007. • Between 1993 and 2009, the number of countries that abolished the death penalty by law for all crimes, grew from 55 to 97. • Today, 139 countries - more than 2/3 of the countries of the world - are abolitionist in law or practice. • Of the 58 countries/territories retaining the death penalty, 18 were known to have carried out executions in 2009 (China, Iran, Iraq, Saudi Arabia and the US top the league).

22. The EU, the UN and the DP • The EU also acts against the death penalty in multilateral fora, such as the United Nations. • A culmination of this effort was the resolutions on the moratorium on the use of the death penalty, adopted by the United Nations General Assembly on 18December 2007 and 18 December 2008. • On December 21st 2010 the United Nations General Assembly approved a new resolution in favour of a universal moratorium on the death penalty. 108 countries voted in favour, with 41 against and 36 abstentions (another 7 countries were absent at the time of the vote). • The number of countries supporting the moratorium has increased each time the vote has been held. • The number of cosponsors of the Resolution also increased, 90 in total, three doing so for the first time: Cambodia, Russia and Madagascar.

23. The EU Delegation in Tokyo (And EUIJ Waseda) • It has been made clear to the EUIJs that both human rights generally and the death penalty specifically have been prioritized by the EU Delegation. • EUIJ Waseda has co-hosted several high profile outreach events, in partnership with the EU Delegation and other member-states. • Reflections on life: European and Asian perspectives on capital punishment, December 2nd, 2009. • Co-Hosted by the Swedish Embassy, the Delegation of the EU to Japan and EUIJ Waseda • Promoting Human Rights in Japan through U.N. Treaties, November 4th, 2010. • Co-Hosted by Delegation of the EU to Japan and EUIJ Waseda • The Death Penalty: Japan in World Perspective, November 25th, 2010. • Co-Hosted by the British Embassy, the Netherlands Embassy and EUIJ Waseda.

24. The UN Human Rights Committee The UN Human Rights Committee is the monitoring committee for the International Covenant on Civil and Political Rights. State parties to the Covenant are required to submit initial and periodic reports to the committee. Japan’s Fifth Periodic Report was considered during the 94th session of the Human Rights Committee, in October 2008. In the following slides I look in some detail at the criticisms that were made of Japan’s record in the Concluding Observations of the Human Rights Committee. I have focused on the sections of the Concluding Observations that focus on the death penalty and the issue of due process in Japan’s criminal justice system. For each article of the Concluding Observations, subjects of concern and recommendations are listed, which provide even more detailed criticism of the death penalty than the EU’s minimum standards.

25. Article 16 – subjects of concern the Committee reiterates its concern that the number of crimes punishable by the death penalty has still not been reduced; and that the number of executions has steadily increased in recent years. It is also concerned that death row inmates are kept in solitary confinement, often for protracted periods; are executed without prior notice before the day of execution; and, in some cases, at an advanced age or despite the fact that they have mental disabilities. The non-use of the power of pardon, commutation or reprieve, as well as the absence of transparency concerning procedures for seeking benefit for such relief, is also a matter of concern. (arts. 6, 7 and 10)

26. Article 16 - recommendations Regardless of opinion polls, the State party should favourably consider abolishing the death penalty; and inform the public, as necessary, about the desirability of abolition. In the meantime, the death penalty should be strictly limited to the most serious crimes, in accordance with article 6, paragraph 2, of the Covenant. Consideration should be given by the State party to adopting a more humane approach with regard to the treatment of death row inmates; and the execution of persons at an advanced age or with mental disabilities. The State party should also ensure that inmates on death row and their families are given reasonable advance notice of the scheduled date and time of the execution, with a view to reducing the psychological suffering caused by the lack of opportunity to prepare themselves for this event. The power of pardon, commutation and reprieve should be genuinely available to those sentenced to death.

27. Article 17 – subjects of concern The Committee notes with concern that an increasing number of defendants are convicted and sentenced to death without exercising their right of appeal; that meetings of death row inmates with their lawyer in charge of requesting a retrial are attended and monitored by prison officials until the court has decided to open the retrial; and that requests for retrial or pardon do not have the effect of staying the execution of a death sentence. (arts. 6 and 14)

28. Article 17 - recommendations The State party should introduce a mandatory system of review in capital cases; and ensure the suspensive effect of requests for retrial or pardon in such cases. Limits may be placed on the number of requests for pardon in order to prevent abuse of the suspension. It should also ensure the strict confidentiality of all meetings between death row inmates and their lawyers concerning retrial.

29. Article 18 – subjects of concern • The police functions of investigation and detention are formally separated under the Act on Penal Detention Facilities and Treatment of Inmates and Detainees. • However, the Committee is concerned about aspects of the substitute detention system (Daiyo Kangoku), under which suspects can be: • detained in police detention facilities for a period up to 23 days to facilitate investigations; • without the possibility of bail; • and with limited access to a lawyer especially during the first 72 hours of arrest. • This increases the risk of prolonged interrogations and abusive interrogation methods with the aim of obtaining a confession. (arts. 7, 9, 10 and 14)

30. Article 18 - recommendations • The State party should abolish the substitute detention system; • or ensure that it is fully compliant with all guarantees contained in article 14 of the Covenant. • It should ensure that all suspects are guaranteed: • the right of confidential access to a lawyer; • including during the interrogation process; • and to legal aid from the moment of arrest and irrespective of the nature of their alleged crime; • and to all police records related to their case; • as well as to medical treatment. • It should also introduce a pre-indictment bail system.

31. Article 19 – subjects of concern The Committee notes with concern the insufficient limitations on the duration of interrogations of suspects contained in internal police regulations; and the exclusion of counsel from interrogations on the assumption that such presence would diminish the function of the interrogation to persuade the suspect to disclose the truth; and the sporadic and selective use of electronic surveillance methods during interrogations, frequently limited to recording the confession by the suspect. It also reiterates its concern about the extremely high conviction rate based primarily on confessions. This concern is aggravated in respect of such convictions that involve death sentences. (arts. 7, 9 and 14)

32. Article 19 - recommendations The State party should adopt legislation prescribing strict time limits for the interrogation of suspects and sanctions for non-compliance; ensure the systematic use of video recording devices during the entire duration of interrogations; and guarantee the right of all suspects to have counsel present during interrogations, with a view to preventing false confessions and ensuring the rights of suspects under article 14 of the Covenant. It should also acknowledge that the role of the police during criminal investigations is to collect evidence for the trial rather than establishing the truth; ensure that silence by suspects is not considered inculpatory; and encourage courts to rely on modern scientific evidence rather than on confessions made during police interrogations.

33. Article 20 – subjects of concern The Committee is concerned that the Penal Institution Visiting Committees, which review complaints that have been dismissed by the Minister of Justice; and the Prefectural Public Safety Commissions responsible for reviewing complaints, petitions for review and reports of cases submitted by detainees; lack the independence, resources and authority required for external prison or detention monitoring and complaint mechanisms to be effective. It notes the absence of any verdicts of guilt or disciplinary sanctions against detention officers for crimes of assault or cruelty during the period from 2005 to 2007. (arts. 7 and 10)

34. Article 20 - recommendations The State party should ensure: (a) that the Penal Institution and Detention Facilities Visiting Committees are adequately equipped and have full access to all relevant information in order to effectively discharge their mandate and that their members are not appointed by the management of penal institutions and police detention facilities; (b) that the Review and Investigation Panel for Complaints from Inmates of Penal Institutions is adequately staffed and that its opinions are binding on the Ministry of Justice; and (c) that the competence for reviewing complaints submitted by detainees is transferred from the Prefectural Public Safety Commissions to an independent body comprised of external experts. It should include in its next periodic report statistical data on the number and nature of complaints received from prisoners and detainees, the sentences or disciplinary measures imposed on perpetrators, and any compensation provided to victims.

35. Article 21 – subjects of concern The Committee is concerned that death row inmates are confined to single rooms during day and night, purportedly to ensure their mental and emotional stability; and that lifetime prisoners are sometimes also placed in solitary confinement for protracted periods of time. It is also concerned about reports that inmates may be confined to protection cells without prior medical examination for a period of 72 hours initially which is indefinitely renewable; and that a certain category of prisoners are placed in separate “accommodating blocks” without an opportunity to appeal against this measure. (arts. 7 and 10)

36. Article 21 - recommendations The State party should relax the rule under which inmates on death row are placed in solitary confinement; ensure that solitary confinement remains an exceptional measure of limited duration; introduce a maximum time limit; require the prior physical and mental examination of an inmate for confinement in protection cells; and discontinue the practice of segregating certain inmates in “accommodating blocks” without clearly defined criteria or possibilities of appeal.