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The Death Penalty in Japan


liberty must be conducted as soon as possible. Te starting point of the period under consideration is the actual arrest and the first court appearance must be conducted as soon as possible.


In addition to reviewing the lawfulness of detention and ascertaining the treatment in detention, the purpose of the initial judicial control is also, should the person be placed on remand, to prevent an on-going or an increased risk of ill-treatment. Tis means that detention on remand must take place in a facility under a different authority than the one responsible for the investigation. Te UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has stated that: “Tose legally arrested should not be held in facilities under the control of their interrogators or investigators for more than the time required by law to obtain a judicial warrant of pre-trial detention which, in any case, should not exceed a period of 48 hours. Tey should accordingly be transferred to a pre-trial facility under a different authority at once, after which no further unsupervised contact with the interrogators or investigators should be permitted.”44


Japanese law and practice


According to Article 203 of Japan’s Code of Criminal Procedure: “when a judicial police officer has arrested a suspect upon an arrest warrant or has received a suspect who was arrested upon an arrest warrant, …he/she… shall carry out the procedure of referring the suspect together with the documents and articles of evidence to a public prosecutor within 48 hours of the suspect being placed under physical restraint when he/she believes that it is necessary to detain the suspect.”


A prosecutor who received a suspect from a police officer has to ask a judge to issue a detention warrant within 24 hours whenever he or she believes that further detention of the suspect is necessary. Tus, the period of time between arrest of a suspect and a request to remand can be up to 72 hours.


Problems often occur after the judge’s decision to remand a suspect. Under the Law on Penal Facilities and the Treatment of Inmates, suspects are supposed to be detained in “penal institutions” under the control of the Ministry of Justice. However, in circumstances which make it impossible to detain suspects in official “penal institutions”, the law allows the use of police cells as a substitute. Tis is known as Japan’s “substitute prison system” (daiyo kangoku seido). In reality, suspects are sent back to police cells in almost all cases where the police have made an arrest. Hence, substitute imprisonment has become the norm in Japanese criminal justice. Tis is dangerous because it places suspects under the control of police, who are in charge of both their detention and their interrogation. Many analysts believe this system is a hotbed for false confessions.45


False confessions obtained in this manner


occurred in four capital cases that resulted in death row exonerations following retrials in the 1980s.46 Tere may well be other condemned persons on Japan’s death row today who also falsely confessed – including former boxer Hakamada Iwao, who was originally sentenced to death in 1968 and who is still trying to obtain a retrial almost half a century later. One of the judges who originally sentenced


44 45


Report to the Commission on Human, E/CN.4/2003/68, paragraph 26(g)


published in Japanese in the journal Sekai in February 1984) 46


One classic study is Igarashi Futaba, “Crime, Confession, and Control in Contemporary Japan”, in Law in Context, Vol.2 (1984), pp.1-30 (originally Daniel H. Foote, “From Japan’s Death Row to Freedom”, Pacific Rim Law & Policy Journal, Vol.1, No.1 (1992), pp.11-103


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