Dr. Paul Bacon Deputy Director, EUIJ Waseda The Asia-Pacific Roundtable on EU Studies

1. Towards a more effective approach to human rights and democracy: a tailored human rights strategy for Japan Dr. Paul Bacon Deputy Director, EUIJ Waseda The Asia-Pacific Roundtable on EU Studies January 2013, Hualien, Taiwan

2. 4 recent EU documents on human rights and democracy • December 2011: High Representative of the EU, Human Rights and Democracy at the Heart of EU External Action - Towards a More Effective Approach. • June 2012: Council of the European Union, EU Strategic Framework on Human Rights and Democracy. • June 2012: Council of the European Union, EU Action Plan on Human Rights and Democracy. • October 2012: European Parliament, Enhancing EU Action on the Death Penalty in Asia, Briefing Paper.

3. Core elements of the 4 EU documents • Renewal - policy needs to be ‘more active, more coherent, more effective’. • Tailoring – need to create tailored, bottom-up, country-specific human rights strategies. • Priorities - administration of justice, and the right to a fair trial (due process) recognized as human rights priorities. • Universal - commits the EU to universal human rights norms. • Local – commits the EU to working in partnership with local civil society organizations. • Campaigns - need for cross-cutting themes such as judicial reform, right to a fair trial (HR). • HR – in some countries, abolition of the death penalty is unlikely. • In such cases it would be more practical to shift attention to other issues. • Parliament – countries are at different stages on journey to abolition, and therefore require different strategies. • All states to ratify and implement universal human rights treaties. • Four documents all explicitly recommend that EU should draw on standards in reports produced by the UN human rights bodies.

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. Figure 1: Number of executions in Japan between 1998 and 2013

6. 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 was in power for three years, between 2009 and 2012, and was generally less supportive of the DP. (Only 2 executions in 2.5 years, until March this year) • 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. • There was a general election on December 16th, which was won emphatically by the Liberal Democratic Party, which is generally highly supportive of the DP. • Roughly 85% of the Japanese public supports the DP.

7. 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 the de facto moratorium was the high-water mark of what is currently achievable in Japan on the DP, especially as the LDP won on the 16th. • 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 provisionally in descending order of priority (starting with the most important). • Issues in red and marked with an * are most important/most achievable.

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. • 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*. • 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) to identify 5 issues from each list to focus on, using the criteria of importance and likelihood of reform. • Public opinion polling on DP in Japan. • Possibility of deliberative polling exercises based on the death penalty/criminal justice. • 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). • Publication of annual 10-15 page EU-sponsored country report (possibly confidential) • 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.