Japan’s legal obligations on the use of the death penalty


In relation to medical experts and, in particular, the responsibility of the state to provide psychiatric assessments in capital trials, the Inter-American Court of Human Rights recently addressed this point for the first time in their judgment in the case of DaCosta Cadogan v. Barbados. Te Court re- emphasised that in capital cases the procedural requirements for a fair trial must be strictly observed and in this regard were specifically asked to consider whether the accused person’s right to a fair trial was violated in light of the fact that no detailed evaluation of his mental health was made during his criminal trial:


“[E]very judge has the obligation to ensure that proceedings are carried out in a manner that guarantees and respects those due process rights necessary to ensure a fair trial in each case. Accordingly, Article 8(2) of the Convention specifies which of these constitute “minimum guarantees” to which all persons have an equal right during proceedings. Specifically, Article 8(2)(c) of the Convention requires that individuals are able to adequately defend themselves against any act of the State that may affect their rights. Additionally, Article 8(2)(f) recognizes the right of defendants to examine witnesses against them and those testifying on their behalf, under the same conditions as the State, with the purpose of defending themselves”.


“[T]he Court observes that the supposed mental illnesses that the representatives alleged Mr. DaCosta Cadogan suffered or suffers are alcohol dependence and anti-social personality disorder, which could have allowed Mr. DaCosta Cadogan to raise a defense of diminished responsibility … Consequently, Mr. DaCosta Cadogan’s mental health at the time of the offense was never fully evaluated by a mental health professional for the purpose of preparing his defense in a case where the death penalty was the only possible sentence”. 52


Te Court held that taking into account the strict procedural requirements that the state is obliged to observe in all capital cases, the judge had a duty to adopt a more active role in ensuring that all necessary measures were carried out in order to guarantee a fair trial. Te failure by the judge to ensure that the accused’s mental health was fully evaluated was held to constitute a violation of the right to a fair trial. As a measure of reparation and in order to guarantee that events such as those analysed in the case are not repeated, the Court ordered the state to ensure that all persons accused of a crime whose sanction is the [mandatory] death penalty are duly informed, at the initiation of the criminal proceedings against them, of the right to obtain a psychiatric evaluation carried out by a state-employed psychiatrist recognised under domestic law.


Japanese law and practice


Since Japan’s lay judge system started in 2009, courts have become more restrictive about what evidence can be introduced at trial. Tis change is largely motivated by the desire to minimise the “burden” (futan) felt by citizens who serve as lay judges. For the same reason, courts have also become more likely to demand that expert testimony be presented in extremely abbreviated forms. In these ways, defendants’ psychological conditions and developmental problems are seldom considered by lay judge tribunals as carefully as they should be.


52


Inter-American Court of Human Rights, Judgment of 24 September 2009. Series C. No. 203. at paragraphs 84-86 21


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