Japan’s legal obligations on the use of the death penalty
eventually sentenced to death, challenged the constitutionality of death by hanging by arguing that hanging is a cruel punishment, which is prohibited by Japan’s Constitution. In Takami’s trial, two experts, a former prosecutor who had observed an execution and an Austrian forensic medical expert, testified about the reality of hanging. Te former prosecutor (Mr. Takeshi Tsuchimoto, who supports capital punishment in principle) testified that “viewed sincerely, the cruelty of hanging cannot be endured”, while the medical expert (Dr. Walter Rabl) testified that based on his extensive research, hanging is cruel. In the end, however, the Osaka District Court held that hanging does not violate Article 36 of Japan’s Constitution (stating that “Te infliction of torture by any public officer and cruel punishments are absolutely forbidden”) because some degree of suffering “has to be put up with” when the method of hanging is employed. However, this claim is incompatible with the ninth Safeguard which requires the minimisation of suffering inflicted on inmates. Hitotsubashi University Professor of Law, Takeshi Honjo, believes this court’s decision is based on the concept of “forgivable cruelty”28 appealed the decision.
. Takami’s defence lawyers have
In Japan, the conditions of detention on death row, the length of time inmates spend on death row, the treatment of death row prisoners, and the lack of proper treatment for death row prisoners with mental health problems violate Articles 7 and 10(1) of the ICCPR as well as Safeguards 3 and 9 and additional Safeguard 7 of ECOSOC Resolution 1996/15.
Pre-trial rights The right to liberty
Te right to liberty is a fundamental right in international and domestic law. It is enshrined in all international human rights instruments (Article 3 of the Universal Declaration on Human Rights; Article 9 of the ICCPR; Article 7 of the ACHR; and Article 5 of the ECHR) and guaranteed in all of the Commonwealth Constitutions. Tere is no right not to be detained; the purpose of the right to liberty is to protect individuals from arbitrary detention. In this context, the prohibition on arbitrary detention means that any detention must conform both to domestic and international standards. Hence the insistence of all the international human rights bodies that the final determination of whether detention is arbitrary is for the international body itself.
Article 9 of the ICCPR provides detailed provisions on pre-trial rights and failure to comply with Article 9 of the ICCPR can influence whether the death penalty is permissible in any given case.
Reasons for arrest and access to a lawyer Reasons for arrest Article 9(2) of the ICCPR states that:
28 Quoted in Keiko Horikawa, ‘Koshukei wa Zangyaku ka’ [Is Hanging Cruel?], Sekai, January 2012 (No. 825), pp.63-72, and February 2012 (No. 827), pp.122-131 13
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